Right of Publicity & AI Digital Likeness Claims — Protecting Your Name, Voice & Image in California

As generative AI makes it easier than ever to recreate a performer's voice, face, or mannerisms, California's right of publicity laws have become one of the most active and rapidly evolving areas of entertainment litigation. Talent, brands, and production companies alike need to understand both the decades-old statutory and common law framework and the state's newest AI-specific protections.

California's Statutory Right of Publicity

Under Civil Code Section 3344 (Current as of 2026. Laws are subject to legislative change.), any person who knowingly uses another person's name, voice, signature, photograph, or likeness, in any manner, on products or merchandise, or for purposes of advertising, selling, or soliciting purchases of products or services, without prior consent, is liable for the resulting damages. A prevailing plaintiff can recover the greater of $750 or actual damages sustained, plus any profits from the unauthorized use that are attributable to it and not already accounted for in actual damages. Different rules apply where the use occurs in connection with news, public affairs, or sports broadcasts, or a political campaign.

The Common Law Right of Publicity

California also recognizes an independent common law right of publicity, which can reach unauthorized uses that fall outside the statute's specific requirements. In Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, the Court of Appeal held that a claim for commercial appropriation of name or likeness requires showing the defendant's use of the plaintiff's identity, appropriation of that identity to the defendant's advantage, lack of consent, and resulting injury. Notably, the court held that California law does not require the unauthorized use to suggest an endorsement or association with the plaintiff — meaning the common law claim can reach a broader range of misuse than the statute's advertising- and merchandise-focused language.

New Protections for Deceased Performers — AB 1836

Generative AI has made it possible to recreate a deceased performer's voice or image with startling realism, raising new legal risks for estates and new liability exposure for producers. Assembly Bill 1836 amended Civil Code Section 3344.1, California's post-mortem right of publicity statute, effective January 1, 2025, to make it unlawful to produce, distribute, or make available a "digital replica" of a deceased personality's voice or likeness in an expressive audiovisual work or sound recording without the prior consent of those who control the performer's publicity rights. A digital replica is defined broadly to include a computer-generated, highly realistic representation that is readily identifiable as the performer's voice or likeness, whether or not the performer actually appeared in the underlying work. Violations carry damages of the greater of $10,000 or the actual damages suffered.

AB 2602 — Digital Replica Clauses in Personal Service Contracts

A related but distinct law addresses living performers. Assembly Bill 2602, codified at Labor Code Section 927, targets contract provisions that allow a digital replica of a performer's voice or likeness to be used in place of work the performer would otherwise have done in person. Such a provision is unenforceable as a matter of public policy unless it includes a reasonably specific description of every proposed use of the digital replica and the performer was represented by legal counsel or a labor union during negotiation of that specific provision. This means a broad, open-ended digital replica clause slipped into a standard-form contract — particularly one presented to an unrepresented performer — may be unenforceable even if the performer signed it.

Statute of Limitations

Right of publicity claims are generally treated as subject to a two-year statute of limitations, by analogy to Code of Civil Procedure Section 335.1 (Current as of 2026. Laws are subject to legislative change.), which governs actions for injury to an individual caused by the wrongful act of another. This two-year period applies to both statutory claims under Civil Code Section 3344 and common law claims under Eastwood v. Superior Court, generally running from the date of the unauthorized use. Claims involving a deceased personality's digital replica under Civil Code Section 3344.1 are likewise generally subject to that same two-year period as to a given unauthorized use, separate from the statute's own 70-year outer limit on how long the underlying right exists after the personality's death under subdivision (g) of that section. Because a right of publicity claim can involve multiple, separately timed uses, and because deadlines can turn on fact-specific issues such as when a use was reasonably discoverable, prompt consultation with an attorney is important to avoid losing a claim to the statute of limitations.

What Damages Are Available

Depending on the theory pursued, a right of publicity plaintiff may recover statutory damages under Civil Code Section 3344 (the greater of $750 or actual damages, plus attributable profits), damages under the AB 1836 digital replica provisions for deceased performers (the greater of $10,000 or actual damages), or common law damages for the value of the unauthorized commercial use and resulting injury. In appropriate cases, injunctive relief may also be available to stop ongoing or threatened unauthorized use.

Steps to Protect a Right of Publicity Claim

1. Preserve evidence of the unauthorized use — screenshots, video captures, advertisements, or merchandise — as soon as it is discovered, since online content can be altered or removed.
2. Document the absence of consent, including any prior negotiations, rejected licensing proposals, or contract terms that limited the scope of any permitted use.
3. Identify all parties involved in creating, distributing, or profiting from the unauthorized use, since liability can extend beyond the original creator.
4. Review any existing contract for digital replica or likeness-use provisions, particularly under the new AB 2602 disclosure and representation requirements.
5. Consult an attorney promptly to evaluate which statutory and common law theories apply and to preserve the ability to seek injunctive relief before further harm occurs.