Right of Publicity
The right of publicity is the right of an individual to control the commercial use of their name, image, likeness, voice, signature, and other personal attributes. It prevents unauthorized use of a person's identity for commercial purposes without consent. California has one of the strongest right of publicity frameworks in the nation — Civil Code § 3344 protects living persons, while § 3344.1 (the Celebrity Rights Act) extends protection to deceased personalities for 70 years post-mortem. The right of publicity is distinct from privacy rights (which protect against intrusion and emotional distress) and operates as a property right that can be licensed, assigned, and inherited.
The right of publicity is one of the most actively litigated areas of entertainment law, particularly in California. AI-generated voice and likeness cloning, unauthorized use of celebrity images in advertising, deepfakes, and virtual performers are all driving right of publicity disputes. For entertainment attorneys, understanding the scope of California's right of publicity framework — and how it interacts with the First Amendment, contract law, and emerging AI legislation — is essential for advising talent, studios, brands, and technology companies.
California's right of publicity statute for living persons — prohibits knowing commercial use of a person's name, voice, signature, photograph, or likeness without prior consent. Provides for actual damages, punitive damages, and attorney's fees.
Extends right of publicity protection to deceased personalities for 70 years after death. Allows post-mortem rights to be transferred and licensed. Requires registration to maintain rights against certain uses.
Requires AI digital replica provisions in performer contracts to include individualized use descriptions and be approved by a licensed agent or attorney.
Requires estate consent before using a deceased performer's digital replica in an audiovisual work.
Would create a federal right over digital replicas of voice and likeness, providing a federal cause of action and First Amendment carve-outs.
Whether deliberately imitating a distinctive celebrity voice for commercial purposes without consent constituted misappropriation.
The Ninth Circuit held that deliberate commercial imitation of a distinctive voice constitutes misappropriation of the right of publicity under California law — foundational precedent for AI voice cloning claims.
Whether using a robot in a pose and setting clearly evoking Vanna White in a Samsung advertisement violated her right of publicity.
The Ninth Circuit held that using an evocative robot to suggest celebrity identity without consent violates the right of publicity — establishing broad protection beyond just name and photograph.
Whether a charcoal drawing of the Three Stooges on t-shirts and lithographs constituted a transformative use of their right of publicity.
The California Supreme Court established the transformative use test for right of publicity claims against expressive works — protecting First Amendment expression while preserving right of publicity claims where the celebrity's image is merely commercially exploited.
The right of publicity is experiencing its most significant evolution in decades due to AI. Voice cloning, deepfakes, and digital replicas have moved from science fiction to everyday technology, and California's right of publicity framework is the primary legal tool for addressing unauthorized AI uses of celebrity identity. The combination of § 3344, AB 2602, AB 1836, and the pending NO FAKES Act creates a multi-layer protection framework — but enforcement against AI-generated uses at scale remains a practical challenge.
For talent clients, conduct a right of publicity audit of all existing agreements — most agreements predating 2023 do not contain adequate AI provisions and may require amendment.
California's right of publicity claims require commercial use — non-commercial artistic or commentary uses may be protected by the transformative use test from Comedy III.
For brand clients using celebrity images or likenesses in advertising, ensure consent agreements specifically address digital and AI uses — pre-AI consent agreements may not cover AI-generated likenesses.
Post-mortem right of publicity rights require active assertion — California § 3344.1 requires registration of the claim to maintain rights in some circumstances. Advise estates to register.
The First Amendment defense (transformative use) is available for genuinely expressive works — commercial products that merely exploit a celebrity's identity without adding original expression are not protected.
California's right of publicity protects living persons (§ 3344) and deceased personalities for 70 years post-mortem (§ 3344.1).
The right extends beyond name and photograph to voice, signature, and other distinctive personal attributes — Midler established voice protection.
AI voice cloning and digital replicas are covered by right of publicity law — AB 2602 and AB 1836 add specific requirements for AI replica provisions.
The transformative use test protects genuinely expressive works — purely commercial exploitation of celebrity identity without creative transformation is not protected.
The NO FAKES Act, if enacted, will create a federal cause of action for unauthorized digital replicas — significantly expanding enforcement options.
Copyright protects original creative expression. The right of publicity protects an individual's identity — their name, voice, likeness, and other personal attributes. A photograph of a celebrity is copyrightable (by the photographer) and the celebrity has right of publicity rights in their image. The two rights can apply simultaneously — using a copyrighted photo of a celebrity in advertising may infringe both the photographer's copyright and the celebrity's right of publicity.
Yes — the transformative use test from Comedy III balances the right of publicity against First Amendment expression. If a work contains significant creative transformation beyond merely exploiting the celebrity's identity for commercial gain, the First Amendment may protect it. Pure commercial exploitation (celebrity image on merchandise without transformative elements) receives no protection. Biographies, satire, and commentary on public figures generally receive First Amendment protection.
In California, 70 years after the death of the personality. During this period, the right can be licensed, assigned, and inherited — it is a property right of the estate. After 70 years, the right expires and the deceased personality's name and likeness enter the public domain for right of publicity purposes (though other legal theories may still apply).