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

USPTO Roundtable on Right of Publicity, NIL, and Artificial Intelligence

A USPTO roundtable will take place on August 5, 2024 on the topic of Right of Publicity and Artificial Intelligence. USPTO AI Right of Publicity roundtable link The program is called Protecting NIL, Persona, and Reputation in the Age of Artificial Intelligence and will be livestreamed at this link: livestream link for USPTO AI Right of Publicity roundtable

With credit to the USPTO link above, the queries posed for the roundtable consist of:
1. How does the use of unauthorized NIL content harm individuals? Does AI technology exacerbate the creation and use of unauthorized NIL content and harm to individuals? If so, how?
2. How can AI be used as a legitimate and constructive tool in circumstances where individuals grant permission to a third party to use their NIL?
3. Do technological mechanisms or protocols currently exist to identify AI-generated NIL content, to prevent or deter unauthorized AI-generated NIL content, or to remove unauthorized AI-generated NIL content after it has been released? What other types of mechanisms or protocols exist, or should exist, to identify AI-generated NIL content or address unauthorized NIL content?
4. Currently, NIL is primarily protected via state law. In addition, some Federal statutes also address certain misuses of NIL. For example, the Lanham Act includes a provision—15 U.S.C. 1125(a)—that can be used to bring a Federal cause of action in certain circumstances involving NIL misuse. Are current legal protections for NIL rights sufficient? Why or why not?
5. There have been calls for a new Federal law to address unauthorized use of NIL content, including content generated by AI. Should Congress create a new Federal law to protect NIL? If so:
(a) Should current state NIL laws, such as state right of publicity laws, be preempted if a new Federal NIL law is enacted?
(b) What key elements should be incorporated in a new Federal NIL law?
(c) Should any new Federal NIL law protect against all unauthorized replicas of an individual’s NIL or focus on unauthorized AI-generated replicas?
(d) Some state laws addressing NIL protect only well-known individuals. Likewise, many Federal circuit courts require a showing, among other elements, that a plaintiff is famous or recognizable by the public in order to succeed on a claim under 15 U.S.C. 1125(a). Should this requirement of fame or recognizability be included in a new Federal law protecting NIL rights? Why or why not?
(e) Should a new Federal law prohibit non-commercial uses of unauthorized NIL content, such as political deep fakes and revenge pornography?
(f) What types of enforcement mechanisms should be included in any new Federal NIL law?
(g) What elements should be included in a new Federal NIL law to help ensure it does not become obsolete due to rapid changes in AI technology?
(h) Section 230 of the Communications Decency Act states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Section 230 also expressly provides that “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.” Should any new Federal NIL law be considered an “intellectual property law” for purposes of Section 230 of the Communications Decency Act?
(i) How should Congress address First Amendment considerations in any new Federal NIL law?
(j) Should any new Federal NIL law be incorporated into the Lanham Act?
6. What limits, if any, should be placed on the voluntary transfer of rights concerning NIL to a third party? For example, should there be limits on the duration of such transfers?
7. Questions 1-6 above relate to individuals’ NIL. How should these questions be answered in the context of individuals’ and creators’ reputations?

Hopefully, this roundtable will be a balanced and fair exploration of these topics. The Right of Publicity often lacks a unified voice of support because it is inherently a person-to-person proposition; in contrast, it is opposed by industries, unions, and lobbying arms, or individuals who sometimes seem quite separate from the perspective that only comes from actually working with affected parties.

Regarding point five, the prospect of any Federal Right of Publicity statute must not lose the ground gained over the last 120 years. My hope is that the USPTO’s August 5 roundtable presents a balanced discussion on this critical topic.

Apparently, a transcript and recording of the event will be available after the livestream at this link: Transcript for USPTO AI Right of Publicity Roundtable