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

The Right of Publicity and Scarlett Johannson’s response to ChatGPT Sky voice

Details and context matter in Right of Publicity analysis. As a brief summary, OpenAI recently released its ChatGPT 4.0 with a chatbot voice (“Sky”) which Scarlett Johannson says is “eerily similar” to hers. We don’t know how the situation may get resolved, but the Right of Publicity provides a response. Apparently, an offer was made by OpenAI for Johannson to voice the ChatGPT 4.0 chat bot. Johannson declined. It may have seemed like a natural fit due to Johannson’s role in the movie Her in which she was the voice of an AI system. Perhaps that fit was so natural that on May 13, 2024 in proximity to the release, Sam Altman issued a one-word tweet: “her.” Past negotiations and this tweet could be the subject of considerable attention, as an example of why “details and context matter” when it comes to the Right of Publicity. The company has denied that Sky was meant to sound like Johannson, but these details could possibly indicate otherwise.

Here is a link to one of numerous articles providing more details: Scarlett Johannson ChatGPT voice that sounded like her

The Right of Publicity and NO FAKES bill

A recently introduced bipartisan Senate bill aims to hold AI and deepfake creators liable for unauthorized use of a person’s likeness. It sounds like a good idea, though Right of Publicity statutes already accomplish this objective. Perhaps a bill specifically addressing these particularly-concerning, technology-based uses could serve a purpose, but it should be considered, and drafted, with existing Right of Publicity statutes in mind. Here’s a link to one article of many covering the bill: NO FAKES bill

New York State Assembly Bill A560C

New York’s legislature may be closing in on passing a Right of Publicity statute with New York State Assembly Bill A5605C.  If so, it would be a significant development in the Right of Publicity realm as New York has been conspicuously behind other states for a very long time.  As of July 20, 2020, the bill was “amended on third reading” (here’s a link to the timeline and status of the bill which also has link to the PDF of the bill itself):  https://www.nysenate.gov/legislation/bills/2019/A5605

Overall, my take is that this bill would be a step in the right direction, even as it would still amount to New York having one of more narrow or limited Right of Publicity statutes in the United States.  For example, a forty year post-mortem provision is quite anemic, and creating a registry system sounds good on paper but in my experience is not particularly helpful yet introduces various problems.  Video games are not on the list of exempted works, as they should not be, and also to its credit, the bill has meaningful provisions in relation to Deepfakes and the problems such technology present in the modern world.

The progress of this bill seems already to have traveled further than past efforts.  Hopefully, tired refrains like “this bill exists only to enrich a few wealthy estates” are worn-out by now and find no traction.  Does copyright and trademark exist only to enrich a few wealthy creators or companies?  Observations of past legislative efforts in New York are addressed in the following link I made on the topic:  https://rightofpublicity.com/observations-about-new-yorks-assembly-bill-a-8155b