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New York has enacted a new law requiring disclosures when certain advertisements include digitally created “synthetic performers,” including performers generated using artificial intelligence (AI) or other software algorithms. The law reflects a growing legislative focus on transparency in AI-generated commercial content.
This new law targets a narrow category of advertising content: advertisements that include computer-created, reproduced, or modified digital assets intended to appear as non-identifiable human performers engaged in audiovisual or visual performances. Companies using generative AI tools in marketing, advertising, content creation, and commercial production should evaluate whether their existing practices might trigger the law’s disclosure requirements.
The disclosure requirements become effective on June 9, 2026, and are codified at N.Y. Gen. Bus. Law § 396-b. Failure to comply with the statute’s disclosure requirements carries civil penalties of $1,000 for the first violation and $5,000 for subsequent violations. The law does not expressly provide a private right of action, suggesting that enforcement would likely rest with the New York attorney general or another state enforcement authority.
The new disclosure requirements mandate any person engaged in the business of dealing in property or services who creates or produces an advertisement for a commercial purpose to conspicuously disclose when the advertisement contains a synthetic performer if the person has actual knowledge that a synthetic performer is in the advertisement.
It imposes the disclosure obligation without providing meaningful guidance regarding how that obligation should be satisfied. Although advertisers must “conspicuously” disclose the use of synthetic performers, the law does not define that term, prescribe disclosure language, establish placement requirements, or provide format-specific standards.
Because the statute requires advertisers to conspicuously disclose the use of synthetic performers but does not define that term, advertisers may wish to look to the Federal Trade Commission’s (FTC’s) “clear and conspicuous” standard as a practical benchmark. Generally, the FTC’s framework requires that disclosures be proximate to the relevant claim; be sufficiently prominent in size, contrast, and duration to be noticed and understood by consumers; and not buried in fine print or hidden behind hyperlinks.
The statute contains the following exemptions that narrow its reach:
Businesses that create, commission, or deploy AI-generated advertising content should consider several steps:
The scope of the law is driven largely by several statutory definitions that determine when the disclosure obligation applies. Those definitions include the following.
Artificial intelligence and generative artificial intelligence. The law broadly defines AI as a machine-based system that can make predictions, recommendations, or decisions influencing real or virtual environments. The definition encompasses machine learning, large language models, natural language processing, and computer vision, among other technologies. Generative AI is separately defined as AI technology capable of generating synthetic content, including text, images, audio, video, and other digital outputs. The law does not require disclosures whenever AI is used. Rather, the disclosure requirement is triggered only when a synthetic performer appears in an advertisement.
Synthetic performer. The law defines a synthetic performer as a human-like digital asset created by generative AI or a software algorithm that engages in audiovisual and visual performances. Several aspects of this definition are noteworthy:
Advertisement. The statute applies to covered persons that, for a commercial purpose, produce or create an advertisement respecting property or services in any medium in which the advertisement appears. Importantly, the law is not limited to television commercials. The disclosure requirement may apply to digital advertising, social media campaigns, online video advertisements, sponsored content, streaming advertisements, and other commercial marketing materials.
Companies using generative AI in advertising should review existing marketing practices, identify advertisements that may contain synthetic performers, and implement procedures for determining when disclosures may be required.
Below are some illustrative examples of disclosures that could be included in advertisements subject to this new law (note that until the New York attorney general or a court provides interpretive guidance, no specific formulation should be considered a safe harbor):
If you have questions about New York’s synthetic performer disclosure law, digital replica issues, AI advertising compliance, or emerging state AI regulations, please contact any of the authors or your regular McDermott lawyer.
