California Right of Publicity: Statute, Common Law, and AI Replicas

The California right of publicity is your legal right to control commercial use of your name, voice, signature, photograph, and likeness, enforced through both a statute (Civil Code Section 3344) and a broader common law claim. If someone uses your identity to sell something without your permission, you can sue to stop the use and collect damages starting at $750 under the statute, with actual damages, the violator’s profits, and attorney’s fees on top. The two claims work together, and California has recently extended these protections to cover AI-generated digital replicas of both living performers and deceased personalities.

The Two Claims You Can Bring

California gives you two overlapping ways to sue, and the elements differ. The statutory claim under Section 3344 requires proof that the defendant knowingly used your name, voice, signature, photograph, or likeness for a commercial purpose without consent.¹ An accidental or unknowing use won’t trigger statutory liability.

The common law claim is wider. Under Eastwood v. National Enquirer, you need to show four things: the defendant used your identity, the use was to the defendant’s advantage, you didn’t consent, and you suffered injury. There is no “knowingly” requirement, so conduct the statute won’t reach can still support a common law claim. The Eastwood court also confirmed the remedies are cumulative, meaning you can pursue both in the same lawsuit.²

In practice, lawyers plead both. The statute gives you a guaranteed damages floor. The common law covers a wider range of what counts as “your identity.” Running them together is the strongest position.

What Parts of Your Identity Are Protected

The statute protects five specific things: your name, voice, signature, photograph, and likeness.¹ “Likeness” is read broadly enough to cover drawings, digital recreations, and other visual representations that make you recognizable. But that list is a hard ceiling for the statutory claim. If someone evokes you without literally using one of those five things, Section 3344 won’t help.

That boundary is what made White v. Samsung Electronics turn out the way it did. Samsung ran an ad featuring a robot in a wig, gown, and jewelry posed next to a Wheel of Fortune-style game board. The Ninth Circuit affirmed dismissal of Vanna White’s Section 3344 claim because Samsung never used her actual name, likeness, voice, or signature.³ It reversed on the common law claim, holding that California’s right of publicity extends beyond those five categories to reach any appropriation that evokes a person’s identity.⁴ If a reasonable person would recognize the reference as pointing to you, the common law can reach it even when the statute cannot.

When the Use Counts as “Commercial”

Not every appearance of your identity creates liability. The use has to be tied to selling products, advertising services, or soliciting purchases. Under the statute, the question is whether your identity is “so directly connected” with the commercial purpose that consent should have been required. Incidental background appearances in a commercially sponsored publication don’t automatically qualify.¹

Several categories are exempt even when money is involved. Uses connected to news reporting, public affairs, sports broadcasts, and political campaigns don’t require consent, and the exemptions apply even when the publication carries advertising.¹ The focus is whether the primary purpose is informing the public or selling a product.

When the First Amendment Blocks Your Claim

Beyond the statutory exemptions, the First Amendment supplies an independent defense that California courts evaluate through the “transformative use” test. The California Supreme Court set out the framework in Comedy III Productions v. Saderup, asking whether the work “adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation.”⁵

The question is which side dominates: the creator’s own expression, or the reproduction of the celebrity. A useful secondary question the court identified is whether the work’s market value comes mainly from the celebrity’s fame or from the artist’s own creativity, skill, and reputation. If the value flows from the artist’s contribution, that weighs toward First Amendment protection.⁵ In Saderup itself, realistic charcoal drawings of the Three Stooges failed the test because they were literal depictions designed to exploit the subjects’ fame.

Rights After Death

Your right of publicity doesn’t end at death in California. Civil Code Section 3344.1 extends protection for 70 years after death, letting heirs, estate representatives, or other successors control and profit from the deceased person’s identity. The protection applies if the person’s identity had commercial value at the time of death or because of the death itself.⁶

Post-mortem rights are treated as property. They can be transferred through contracts, trusts, wills, and other estate instruments, and licensed much like a trademark. One registration requirement catches people off guard: a successor or licensee cannot recover damages for unauthorized uses that occurred before registering a claim with the California Secretary of State.⁶ The registration form requires the deceased person’s name, date of death, the claimant’s identity, and the basis of the claim. Delay doesn’t forfeit the right, but it does create a gap in what you can collect.

AI Digital Replicas: Two New Laws for 2025

California enacted two laws in 2024 extending right of publicity protections to AI-generated replicas. Both took effect on January 1, 2025.

Deceased Personalities Under AB 1836

AB 1836 amended Section 3344.1 to prohibit producing, distributing, or making available a “digital replica” of a deceased person’s voice or likeness in audiovisual works or sound recordings without consent from the rights holder. A digital replica is defined as a computer-generated, highly realistic representation that is readily identifiable as the individual, involving work the person either never performed in or performed in but had materially altered.⁷

The statutory minimum is $10,000 or actual damages, whichever is greater. The law exempts uses protected by the First Amendment, including news and public affairs coverage, commentary, criticism, satire, parody, and documentary or biographical work, unless the piece creates the false impression that it’s an authentic recording the person actually participated in. Fleeting or incidental uses are also exempt.⁷

Living Performers Under AB 2602

AB 2602, codified at Labor Code Section 927, addresses contracts with living performers that authorize using a digital replica in place of an actual performance. Those contract provisions are unenforceable unless they include a reasonably specific description of how the digital replica will be used.⁸

Two exceptions can save a vague clause. The performer must have been represented by an attorney who negotiated the digital replica terms, and the performer must have signed or initialed those specific terms. Alternatively, the performer must be covered by a union collective bargaining agreement that expressly addresses digital replicas.⁸ Without one of those, a studio can’t enforce a blanket clause granting itself open-ended rights to create and use an AI version of a performer.

What You Can Recover

Section 3344 guarantees a minimum recovery of $750, even without proof of specific financial loss. On top of that, you can recover actual damages, typically measured by the fair market value of a license for the use or by lost opportunities. You can also claim any profits the defendant made from the unauthorized use that aren’t already captured in your actual damages.¹ To prove profits, you only need to show the defendant’s gross revenue attributable to the unauthorized use; the burden then shifts to the defendant to prove deductible expenses.

The prevailing party in a Section 3344 lawsuit is entitled to attorney’s fees and court costs. Punitive damages are available when the unauthorized use involves fraud, oppression, or malice.¹ Injunctive relief, a court order stopping the use, is also available because the statute’s remedies are cumulative with other legal remedies.²

For AI-generated digital replicas of deceased personalities, the floor is considerably higher at $10,000 under AB 1836.⁷

Deadline to Sue

You have two years to file. The clock starts when you discover, or reasonably should have discovered, the unauthorized use. Missing the deadline typically bars the claim entirely, so monitoring how your name and image appear commercially is worth taking seriously, particularly for public figures. For post-mortem claims, the Section 3344.1 registration rule adds a second timing issue: even a timely-filed lawsuit cannot recover damages for any period before you registered with the Secretary of State.⁶

1
California Legislative Information. California Code CIV 3344
2
FindLaw. Eastwood v. National Enquirer Inc.
3
Justia. White v. Samsung Electronics America, Inc., 971 F.2d 1395
4
OpenCasebook. White v. Samsung Electronics America, Inc.
5
Stanford Law. Comedy III Productions, Inc. v. Gary Saderup, Inc.
6
California Legislative Information. California Civil Code 3344.1
7
California Legislative Information. AB 1836
8
California Legislative Information. AB 2602