The Matrix

Who does the NY Synthetic Performer Disclosure Law apply to?

The NY Synthetic Performer Disclosure Law defines an advertiser as anyone who is “engaged in the business of dealing in any property or service…for any commercial purpose” and whose content reaches New York audiences, regardless of where the advertiser is based, is subject to the requirements of the law provided that a “synthetic performer” appears in the advertisement.

The definition of “advertising” is quite broad, so it is safest to assume that any content or advertisement intended to promote a product or service in any way, falls under the purview of the law. This would include, but is not limited to, any social media, paid digital, video, influencer content, TV, and display advertising. Specifically excluded from the scope of the law are audio-only advertisements and any use of AI solely involving language translation of a human performer. Similarly, the law excludes advertisements for expressive works (e.g. films, streaming content, and video games) provided that the use of the “synthetic performer” in the advertisement is consistent with its use in the expressive work. For example, the law likely will not require disclosure for AI generated characters that appear in advertisements of video games or animated movies if the same character appears in the applicable expressive work.

A “synthetic performer” is defined by the NY Synthetic Performer Disclosure Law as a “digitally created asset” produced, reproduced, altered or modified by computer, using generative AI or any software “that is intended to create the impression that the asset is engaging in an audiovisual and/or visual performance of a human performer who is not recognizable as any identifiable natural performer.” Essentially, a “synthetic performer” is a digitally created human who appears real but does not actually exist. Importantly, the law is not solely targeted toward AI creations of “synthetic performers,” it also captures any digital assets that mimic human performers which are created by any “software algorithm”. However, minor editing, such as retouching or color correction or the use of AI tools to enhance real people, generally does not trigger the law.

What does the NY Synthetic Performer Disclosure Law require?

The law mandates a “conspicuous” disclosure for any person or advertiser, that has actual knowledge, of the use of a “synthetic performer” in any advertisement related to the dealing in any property or service for commercial purposes. The law does not define “conspicuous” allowing market participants to adopt different approaches for formatting required disclosures across different types of advertisements. Additionally, the law does not define “performer” meaning the term should be construed expansively and may not apply solely to “main actors” but could also include any digitally created “extras.”

How can advertisers comply with the NY Synthetic Performer Disclosure Law?

While there is no prescribed wording for the required disclosure, the best practice is to use simple, clear language and ensure the disclosure is prominently displayed. Examples include short plain phrasing such as “AI‑generated performer,” “synthetic performer,” or “this ad includes an AI‑created person”. Advertisers should ensure any disclosures are accessible and translated for non-English-targeted New York audiences.

To support compliance and mitigate enforcement risk, advertisers should maintain records of tools and generated assets used (including prompts, versions, vendor contracts, and ingestion logs) and create a searchable inventory of assets requiring disclosures and their publication dates. For any new advertising relationships and AI-vendor agreements, on a go-forward basis, said agreements should include (1) representations and warranties about synthetic content and required disclosures, (2) indemnification for failure to disclose, (3) requirements to preserve and share provenance metadata, and (4) notice obligations and pre-approval workflows for publishing new advertisements. Advertisers should update any influencer program policies, and any new influencer agreements, to require or add (1) mandatory training on disclosure requirements, (2) pre-approval for content that uses generative tools, and (3) audit rights and remediation steps for non-compliant content.

Sophisticated advertisers should create marketing workflows for advertisements that utilize AI or computer-generated output. This may include legal review and approval prior to publishing any advertisement that relied on generative tools or a policy handbook or decision tree that assists your marketing team’s understanding of when the law is implicated by content they produce.

While this may be the first of its kind, it likely is not the last state law enacted to address the use of AI in advertisements or any other kind of digital content. It is imperative that businesses and any person that relies on AI to create marketing or digital content understand the extent to which AI is being utilized now and begin implementing workflows for the review and pre-approval of any advertising with AI generated content. Honigman will continue to monitor the legal landscape surrounding the use of generative software and AI in advertisements and digital content.