What Digital Marketers Need to Know About New York’s New AI Disclosure Law

AI-generated advertisements are a double-edged sword.  Digital marketers should be properly advised on risks related to such use in conjunction with advertising campaigns.

For example, the growing use of artificial intelligence in advertising has recently resulted in New York State enacting a new law that carries clear compliance obligations and monetary penalties for advertisers that fail to comply.

On December 11, 2025, New York Governor Kathy Hochul signed S.8420-A/A.8887-B, a first-of-its-kind legislation.  The new law requires transparency in digital and social advertising.  In short, the new law requires a “conspicuous disclosure” when an advertisement includes a “synthetic performer” in a commercial advertisement.

What is a “Synthetic Performer”?

As set forth by the statute, a “synthetic performer” means a digitally created asset created, reproduced, or modified by computer, using generative artificial intelligence or a software algorithm, 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.

What are the Disclosure Requirements Under the New Law?

Any person, firm, corporation, or association (or their agents or employees) engaged in the business of dealing in any property or service who for any commercial purpose produces or creates an advertisement before the public in New York respecting any such property or service, in any medium or media in which such advertisement appears, shall “conspicuously” disclose in such advertisement that a synthetic performer is in such advertisement, where such person has actual knowledge that a synthetic performer is used.

The statute does not require specific disclosure language.  However, the disclosure must be “conspicuous,” prominent, unavoidable and noticeable (i.e., not in fine print).

Digital marketers, brands, agencies and platforms using AI in creative content, social media, influencer marketing, or branded content should consult with an experienced FTC compliance attorney to discuss whether the new law is applicable to first and third-party marketing campaigns (including, but not limited to, agencies and AI vendors), how to shift liability exposure from a marketing and influencer contractual standpoint, how to implement internal auditing process for AI-generated human likenesses prior to distribution in New York, and how to incorporate the disclosure requirements into creative materials and media placements distributed within New York.

What is the Penalty for Violating the New Law?

In addition to bad press and litigation exposure, violations of the disclosure requirements shall result in a civil penalty of $1,000 for the first violation, and $5,000 for any subsequent violation.  Consequently, marketing campaigns that fail to comply with the new law can rack up very large statutory penalties and litigation costs very quickly.

Are There Exclusions?

Yes.  The new requirements shall not apply to advertisements and promotional materials for expressive works, including but not limited to, motion pictures, television shows, streaming content, documentaries, video games, or other similar audio advertisements/audiovisual works, provided that the use of a synthetic performer in the advertisement or promotional material is consistent with its use in the expressive work.  Nor does the new law apply where AI is used solely for language translation purposes. Also, the new law contains a potential narrow exemption for some media outlets and platforms that publish or distribute advertisements.

Expanded New York Right of Publicity Legislation

Although not the subject of this article, it is also noteworthy that New York has also recently expanded a posthumous right of publicity law that exposes advertisers to statutory, compensatory and punitive damages for the unauthorized uses of deceased persons’ likenesses.  The second piece of legislation (S.8391/A.8882) is now effective and requires prior consent from a deceased individual’s heirs or executors for the commercial use of the individual’s name, voice, image or likeness.  Here, specifically defined “deceased personalities” that were domiciled in New York when they died and whose name, likeness, etc. possessed commercial value at death are protected from the unauthorized use via a “digital replica” thereof.  A violation of the law potentially exposes violators to statutory damages of $2,000 or profits from unauthorized use, whichever is greater.  Punitive damages are also potentially available under the statute.

Takeaway: New York has amended its general business law to impose new disclosure and consent requirements for the use of AI in advertising campaigns.  Beginning June 2026, advertisers that distribute content in New York shall be required to “conspicuously” disclose the use of AI-generated “synthetic performers” (i.e., digitally created media, generated by AI or algorithm, that appear as a genuine but non-identifiable person) in commerce advertisements.  Unless an exclusion applies, those involved in the creation or production of commercial advertising content utilizing an AI-generated human likeness shall be required to comply or face stiff monetary civil penalties.  Other states are considering similar AI-related legislation.  The law was passed following President Trump recently signing an executive order that expresses that desire to enhance United States’ AI innovation and preempt states’ authority to regulate the use of AI to the extent that they conflict with federal policy.

Richard B. Newman is an eCommerce attorney at Hinch Newman LLP focusing on digital marketing and regulatory defense.

Informational purposes only. Not legal advice. This article is not intended to and should not be construed as legal advice. May be considered attorney advertising.