A quick look at California’s recent Right of Publicity amendment, AI, and likeness

California has joined other states like Tennessee in amending its statutory Right of Publicity in response to AI and digital replicas. Senate Bill 683 was signed into law by Governor Newsom on October 10, 2025.

Statutory clarity is a good thing, and concerns over AI and digital replicas are valid. That said, a Right of Publicity infringement involving AI or digital replicas already should fit squarely into a reasonable interpretation of Right of Publicity. I submit that likeness was always intended to be a catch-all provision. Many statutes articulate image and photograph alongside likeness. If likeness is merely identical to image or photograph, it would be pointless to include and serve no purpose. The intent behind Right of Publicity recognition as I have always understood it is not to use a crabbed, restrictive interpretation in the face of infringement. Further, interpreting likeness as inclusive of digital replicas does not require expansive interpretation; it merely requires application of its plain meaning.

As such, I would not hesitate to support an otherwise enforceable, legitimate Right of Publicity claim in a jurisdiction that does not have an AI or digital replica amendment to its Right of Publicity provisions. There should be no need for a Tik Tok statute or an Instagram amendment, and the same holds true with regard to AI and digital replicas. Bette Midler and Tom Waits both prevailed in soundalike cases decades ago, though they did so under California’s common law following an interpretation that because their actual voice was not included in the offending jingles, the statute did not apply. The court likely missed the opportunity to interpret likeness in its most direct manner, consistent with the purpose for likeness being articulated in the statute. Look up likeness in the American Heritage Dictionary and there is no question that likeness is not a mere synonym for image or photograph. It is a broad, inclusive term.

The most notable amendments to California’s Civil Code Section 3344 include:

1. Expanding the interpretation and definition of photograph as well as voice and likeness as inclusive of digital replicas.
2. Including injunctive relief and TROs as a remedy, and specifically, upon a court order to cease an infringement of 3344, the infringer must comply within days of the order being served.

Citing the statute directly in relation to the added forms of relief, section 3344 (a)(2) states:

(2) In addition to the remedies available in paragraph (1), a party may seek an injunction or temporary restraining order pursuant to Section 527 of the Code of Civil Procedure. If the court grants the applicant an order under subdivision (c) of Section 527 of the Code of Civil Procedure that requires the respondent to remove, recall, or otherwise cease the publication or distribution of the petitioner’s name, voice, signature, photograph, or likeness, the respondent shall complete the removal or recall, or cease the publication or distribution, within two business days from the day the order is served, unless otherwise required by the order.

Citing the statute directly in relation to the expanded definition of photograph, 3344 (b) and (b)(1) state:
(b) As used in this section, “photograph” means any photograph or photographic reproduction, still or moving, or any videotape or live television transmission, of any person, such that the person is readily identifiable.
(1) A person shall be deemed to be readily identifiable from a photograph when one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use.

And last, citing the statute directly in relation to its inclusion of digital replicas, 3344 (f) states:
(f) For the purposes of this section, a voice or likeness includes a digital replica, as defined in Section 3344.1.

Here is a link to the full amendment: Text of California’s amended 3344

Plans for Steve Jobs action figure, biggest Right of Publicity story of 2012?

The biggest Right of Publicity story of 2012 so far has to be the news that a company called In Icons is preparing to issue a Steve Jobs action figure.  In response, Apple reportedly sent a cease and desist letter to In Icons, prompting Tandy Cheung of In Icons to state “Apple can do anything they like…I will not stop, we already started production.”

I hate to break it to them, but if an activity is prohibited by law, the fact that the offending company is already in production would provide no defense or entitlement to proceed.  This Steve Jobs action figure is exactly the kind of unauthorized commercial product that the Right of Publicity is designed to address, if not prevent.

Cheung reportedly stated “Steve Jobs is not an actor, he’s just a celebrity,” and that “[t]here is no copyright protection for a normal person.”   Aside from the various legal errors in that comment, I can’t help thinking that this line of thought is exactly what gets companies sued for Right of Publicity violations.

Here is a link to the MSNBC article containing Cheung’s quotes and reporting many more details on this story: http://technolog.msnbc.msn.com/_news/2012/01/05/9972437-apple-tries-to-ban-realistic-steve-jobs-action-figure

The MSNBC article states that Apple claims to own the post-mortem rights to Steve Jobs’ name, image and likeness, as manifest by the In Icons action figure.  I do not know whether or not Apple has affirmatively made that assertion or if that is an assumption being drawn from the fact that Apple issued the cease and desist letter.  All things being equal, I would have assumed that Steve Jobs’ family would be the beneficiary of Steve Jobs’ Right of Publicity.  Perhaps Apple does in fact have an ownership interest in Steve Jobs’ Right of Publicity.  The Right of Publicity is assignable during life or at death through testamentary documents or intestate succession.  The Right of Publicity is also divisible in whole or in part, meaning that several owners could own varying percentages of his Right of Publicity.  Alternatively, perhaps Apple is simply handling administrative duties such as protecting against unauthorized use of Steve Jobs’ Right of Publicity.  Presumably, Apple’s legal advisors and Steve Jobs’ family and heirs have already addressed this crucial point.

In researching this story, I also came across another write-up about the Steve Jobs action figure on Paidcontent.org entitled “Steve Jobs Doll Legal In Most States, Not Indiana” which can be accessed here:  http://paidcontent.org/article/419-steve-jobs-doll-legal-in-most-states-not-indiana/

This article seems to conclude that the Steve Jobs action figure is only actionable in those states with a statutory Right of Publicity in place.  The article ends by listing those states with a statutory Right of Publicity but does not include California, which is a fairly important jurisdiction for Right of Publicity matters.  California, in 2008, passed legislation confirming that the Right of Publicity does apply to those persons who died prior to passage of the statute.  Here’s a link to the amended language:  http://rightofpublicity.com/statutes/california-2008-amendment-to-33441

This amendment, signed into law by Governor Schwarzenegger, was in response to a California ruling that concluded that Marilyn Monroe was not entitled to statutory Right of Publicity protection under California law, because of the perceived location of, and law of, her domicile at the time that she died in 1956.  California’s 2008 bill was in fact just a clarification that the law indeed always was supposed to apply to those who predeceased passage of the statute.

Right of Publicity litigation usually involves application of the Single Publication Rule, which in general terms allows a claimant to address the totality of the infringement through one cause of action.  In the absence of such procedural efficiency, a claimant might be forced to go state by state, litigating the same basic nucleus of facts, against the same parties, over only those activities that took place in that particular state.  If courts are overburdened now, which they generally are, just imagine the inefficiency and backlog that such an approach would generate.

Thankfully, this is not how Right of Publicity litigation is typically conducted.

As for Steve Jobs and whomever is the appropriate party to assert a claim for violation of his Right of Publicity, I am confident that the law would back them up if they have to litigate in response to a Steve Jobs action figure.  If not, one would have to wonder why the Right of Publicity exists in the first place.