California Expands Its Post-Mortem Right of Publicity Law to Cover AI Digital Replicas

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California A.B. 1836 amends section 3344.1 of the California Civil Code, which covers the post-mortem intellectual property rights for a deceased personality. It expands the coverage of those rights to include digital replicas and lays down new penalties for violating those post-mortem digital replica rights. According to the new regulations, a person that produces, distributes, or otherwise makes available the digital replica of the voice or likeness of a deceased personality, “in an expressive audiovisual work or sound recording,” without prior consent from the holder of the rights can be held liable to any injured party for either $10,000 or for the amount of actual damages suffered by the holder of the rights, whichever is greater.

On September 17, 2024, California A.B. 1836 was signed into law effective January 1, 2025. The core focus of the law is to expand the existing post-mortem rights of deceased personalities to include their AI generated digital replicas. It is one of several bills, including California A.B. 2602, designed to protect performers from unfair contracts regarding digital replicas that aim to protect performers and celebrities in California from being replaced by AI digital replicas.

This post-mortem expansion law includes the same definition of “digital replica” as California A.B. 2602, and is defined as: “a computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual that is embodied in a sound recording, image, audiovisual work, or transmission in which the actual individual either did not actually perform or appear, or the actual individual did perform or appear, but the fundamental character of the performance or appearance has been materially altered.”

Along with sharing a definition of what constitutes a digital replica, both laws share the same carveouts from that definition, namely, electronic reproduction, sampling, remixing, mastering, and digital remastering of a sound recording or audiovisual work that was approved by the holder of the copyright are all carved out as exceptions.

Exceptions

Like the exceptions for images of deceased celebrities other than digital replicas, these exceptions allow for certain First Amendment related uses of digital replicas even without permission from the holder of the rights. The first exception is for news, sports, and public affairs broadcasting and accounting. The second exception applies to uses for the purposes of comment, criticism, satire, parody, or scholarship. The third is for use of a deceased personality’s digital replica as part of a documentary to represent them, or for use in biographies or historical works on that personality. This includes allowing for “some degree of fictionalization,” in the work. This allowance does come with the restriction that it is void if the work intentionally seeks to create the false impression that the replica depiction was instead the actual personality, and the work was something they took part in. Fourth is an allowance for digital replica uses that are only fleeting or incidental. The final exception is for use in advertising or official announcements about material that is already covered under one of the previously listed exceptions.

New Provision

It also adds a new provision that, like the ELVIS Act in Tennessee, allows for organizations like record labels to potentially bring a cause of action under these rules. This comes with two restrictions. One, it only applies to rights for professional musicians. Two, the organization must have an exclusive contract with the professional musician as a recording artist or an exclusive distribution contract for the audio recordings of their musical performances.

Beyond 1836

The expansion of California’s post-mortem deceased celebrity law is part of a larger landscape of increasing concern over the issues surrounding digital replicas. Both the Senate and the House have proposed a NO FAKES Act to address the increasingly prominent issues surrounding digital replicas, and particularly the risk of digital replicas of performers.

While these post-mortem rights being added to the existing California Civil Code applies only to those considered a “deceased personality,” on the same day California enacted a law to protect performers from unfair contracts relating to AI generated digital replicas.

Conclusion

With the continuing development of AI and growing concerns over issues like deepfakes, it is crucial to ensure that digital replica rights are protected. By expanding the post-mortem rights for deceased personalities to include digital replica rights, California A.B. 1836 is an important step towards ensuring those rights get the protection they need. This bill comes as part of a wave of recently passed or introduced legislation attempting to deal with the issue of digital replicas. The bill was passed at the same time as California A.B. 2602, which deals with contract provisions that allow for the replacement of an individual with a digital replica. There is also the Tennessee ELVIS Act, which also deals with trying to protect against unauthorized creation of digital replicas. There is even the recently introduced federal NO FAKES Act, which also seeks to address this increasingly prominent issue of digital replicas. These all show that the issue of digital replicas is an important one, and this bill serves as a significant step towards better addressing that issue.

By Nancy E. Wolff with JT Fitzpatrick