Illinois continues to enact legislation regulating artificial intelligence (AI) and generative AI technologies.

  • A little less than a year ago, Gov. JB Pritzker signed H.B. 2123 into law. That law, becoming effective January 1, 2024, expanded the state’s Civil Remedies for Nonconsensual Dissemination of Private Sexual Images Act to permit persons about whom “digitally altered sexual images” (a form of “deepfake”) are published without consent to sue for damages and/or seek expanded injunctive relief.
  • We recently summarized amendments to the Illinois Human Rights Act that added certain uses of AI and generative AI by covered employers that could constitute civil rights violations.
  • Here we briefly discuss two more recently enacted laws focused on the impact AI and generative AI technologies have on individuals’ digital likeness and publicity rights.

It is not uncommon for organizations to involve their employees along with other individuals in marketing and promotional or other commercial activities. Whether it is seeking employee participation in television advertisements, radio spots, as influencers in social media, or other interactions with consumers, using an employee’s image or likeness can have significant beneficial impacts on the branding and promotion of an organization. Expanding digital technologies, powered by AI and generative AI, can vastly expand the marketing and promotional options organizations have, including through the use of video, voice prints, etc. The ubiquity of these technologies, their ease of use, and near-instantaneous path to wide distribution bring tremendous opportunities, but also significant risk.

In recent legislative sessions, Illinois passed two significant bills  – House Bill (HB) 4762 and House Bill (HB) 4875 –  designed to protect individuals’ digital likeness and publicity rights.

HB 4875

HB 4875 amends Illinois’ existing Right of Publicity Act to protect against the unauthorized use of “digital replicas” amid the widespread adoption of artificial intelligence and generative AI technologies. A “digital replica” means:

a newly created, electronic representation of the voice, image, or likeness of an actual individual created using a computer, algorithm, software, tool, artificial intelligence, or other technology that is fixed in a sound recording or audiovisual work in which that individual did not actually perform or appear, and which a reasonable person would believe is that particular individual’s voice, image, or likeness being imitated.

Unauthorized use of a digital replica generally means doing so without consent. Indeed, the new law provides that “a person may not knowingly distribute, transmit, or make available to the general public a sound recording or audiovisual work with actual knowledge that the work contains an unauthorized digital replica.” Notably, this proscription is not contingent on there being a commercial purpose.

Importantly, in addition to holding persons liable for knowingly distributing, transmitting, or making available to the general public works containing unauthorized digital replicas, the law also holds individuals or entities liable if they materially contribute to, induce, or facilitate a violation of the law by another party, knowing that the other party is in violation.

Organizations that have obtained consent from workers regarding the use of their name and likeness may want to reconsider the language in those consents to ensure they are capturing these technologies along with the traditional photos, videos, and similar content. This law takes effect January 1, 2025.

HB 4762

HB 4762, also known as the Digital Voice and Likeness Protection Act, seeks to safeguard individuals from unauthorized use of their digital replicas. This bill addresses the growing concern over the misuse of digital likenesses created through advanced technologies, including generative AI.

The Act stipulates that a provision in an agreement between an individual and any other person for the performance of personal or professional services is unenforceable and against public policy if it satisfies all of the following:

  • allows for the creation and use of a digital replica of the individual’s voice or likeness in place of work the individual would otherwise have performed in person;
  • does not include a reasonably specific description of the intended uses of the digital replica; and
  • the individual was not either: (i) represented by counsel in negotiating the agreement that governs the use of the digital replica, or (ii) represented by a labor union where the terms of the applicable collective bargaining covers the use of the digital replicas.

This Act applies to agreements entered into after the effective date of this Act, August 9, 2024.

If you have questions about the applications of HB 4762 and HB 4875 or related issues contact a Jackson Lewis attorney to discuss.

Tags: AI, artificial intelligence, consent, digital replica, generative AI, HB 2123, HB 4762, HB 4875, Illinois, likeness, public image, publicity rights
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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.

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