NY Synthetic Performer Bill Amendments Help Broadcasters - Radio Exempted

As we have been reporting, we strongly opposed legislation in New York (S.1228C and A.606B), which would have required local stations to include a disclosure label on any advertisement that included a computer-generated character or synthetic performer.  Failure to include a disclosure could result in significant penalties.  Our concerns were summarized in previous articles.  We also launched a radio and TV campaign opposing the legislation.

After a series of negotiations and long nights, we are happy to report that the legislation was amended significantly.  The amended version passed the Senate (S.8420A) last week and is being voted on in the Assembly (A.8887B) as we go to press.  Here are the important changes.

Audio advertisements: Audio-only advertisements (radio & podcasts) are completely exempt from the legislation.

Video Advertisements: Liability on Creator, Not Stations Broadcasting Ads from Other Program Suppliers:  The obligation to include a disclosure for using a computer-generated “synthetic performer” rests solely with the creator or producer of the advertisement. Earlier versions of the legislation made local New York stations responsible for advertisements received from networks or other program suppliers, e.g., ads included in barter syndicated programs.  This presented stations with an impossible task of prescreening and placing disclosures on ads received from other program suppliers.  Under the new legislation, entities in the “distribution chain,” such as local television stations, have no obligation to insert a “synthetic performer” disclosure in these advertisements and are not liable if they lack a disclosure.

If a TV station creates an ad for a commercial client, it will be responsible for including a disclosure label if it uses a computer-generated “synthetic performer.”   Therefore, local stations using new AI systems must insert a disclosure if there is a computer-generated human character and voice.

Language Translations are Excluded:  Translating an ad from one language to another is not considered to be using a “synthetic performer.” 

Content of Disclosure Left Up to Ad Creator: The legislation does not prescribe language for the disclosure.  At this point, the language used in the video disclosure is left up to the creator.  However, we expect the regulations to be adopted to implement the legislation that may try to mandate a specific label.

Effective Date in 180 Days: The legislation gives stations time to adjust.  The law does not become effective 180 days after it is signed by the Governor and enacted into law.  This may take some time. 

Overly Broad Definition of Synthetic Performer: The legislation adopts an extremely broad definition as to what constitutes a synthetic performer.  Simply stated, nearly every computer-generated image taking a human form would constitute a “synthetic performer” under the legislation.  With the exception of language translations, this would apply to modifications of an image.  In the extreme case, this could even apply to “cartoon characters” like “Mr. Clean.”  This includes not only the primary character in an advertisement, but computer-generated human images appearing in the background as well.

Synthetic Characters are not Inherently Deceptive: The legislation adds a new provision to New York’s laws against false and deceptive advertising.  The legislation assumes “synthetic performers” are inherently deceptive.  This is certainly not the case.  From a consumer’s perspective, there is no difference between a human being dressed up to impersonate a character and a computer-generated image that achieves the same result.  The real issue is the truthfulness of what is being said in an advertisement, not whether the character making the statement is computer-generated or a real human, which reveals the true purpose of the legislation.  This is a labor bill, proposed by SAG, which is being presented as a consumer protection bill.

The legislation will, at some point, move from the legislature to the Governor’s desk.  At this point, we are not sure when this will happen.  The major advertising agencies remain opposed to the legislation.  We expect there may be efforts to obtain a veto from the Governor, or at the least, seek additional modifications. 

While not perfect, the legislation has come a long way.  We want to thank the stations that contacted members of the New York State Senate and Assembly.  We especially want to thank the radio and television stations that broadcast our PSA spots.  You really made a difference.   

You can see the revised legislation here.