California AB 1836: Digital Replicas of Deceased Performers

AB 1836 is short because it does not invent anything. It plugs AI-generated replicas into a right of publicity California has had since 1985, and every consequence — the seventy-year term, the estate as the claimant, the news carve-out — follows from that choice.

It is an amendment, not a new right

AB 1836 was signed on 17 September 2024 and took effect on 1 January 2025. It amends California Civil Code section 3344.1, the statute that gives a deceased personality’s successors a property right in their name, voice, signature, photograph and likeness. Section 3344.1 is often called the Astaire Bill after the 1999 amendments that followed the use of Fred Astaire’s image in advertising; its basic move is to make the publicity right descendible and to give the estate a cause of action against unauthorised commercial use.

Reading AB 1836 as “California’s deepfake law” leads people wrong immediately. It is not about deception, and it is not about labelling. A perfectly labelled, obviously synthetic reconstruction of a dead actor in a film is squarely within the prohibition; an unlabelled but consented one is outside it. The operative question is consent, not disclosure — which is the opposite of SB 942 on provenance and of the EU’s deepfake labelling duty.

What counts as a digital replica

The amendment adds a definition of a digital replica to section 3344.1: broadly, a computer-generated, highly realistic electronic representation of a deceased personality’s voice or visual likeness in a role or performance in which the individual did not actually perform, or in an altered version of a performance they did give, where the replica is readily identifiable as that individual.

Three elements do the work. Highly realistic excludes caricature, animation in an obviously stylised register, and an impersonation that nobody would mistake for the person. Readily identifiable is the same standard already used elsewhere in section 3344.1 and asks whether an ordinary viewer would recognise the individual. Did not actually perform is the element that separates a synthesised new performance from the licensed reuse of archival footage, which was already governed by the unamended statute.

The prohibition reaches production, distribution and making available of the replica in an expressive audiovisual work or a sound recording, for commercial purposes, without prior consent. The commercial framing matters: this is a property statute, and a use with no commercial dimension at all engages it less readily.

Whose consent, and for how long

Because the right lives in section 3344.1, the term is the one that section already sets: the post-mortem right runs for seventy years after the personality’s death. Consent comes from whoever holds the right — by will or other testamentary instrument, or otherwise by the statutory hierarchy of surviving spouse and children. California maintains a registry of claimants to deceased personality rights with the Secretary of State, and a producer clearing a use is checking that registry as a matter of routine.

One practical consequence is often missed. A consent given by a living performer during their lifetime, in an ordinary services agreement, may or may not carry the specificity a post-mortem replica would need — and the companion statute AB 2602, which added Labor Code section 927, is precisely about the specificity of such consents while the performer is alive. If your clearance chain rests on a broad grant signed years ago, that is a question for counsel and not a question for a checklist.

The bill text is at California Legislative Information. Read the chaptered version; the introduced draft was materially broader before the expressive-use carve-outs were negotiated in.

The expressive-use exemptions

The amendment carries an explicit list of uses that do not require consent, and the list is where most of the First Amendment pressure was absorbed during the bill’s passage. It covers, in substance, use in connection with news, public affairs and sports broadcasts; use for purposes of comment, criticism, scholarship, satire or parody; use in a documentary or in a historical or biographical work, provided the work does not create the false impression that the deceased personality actually participated; and fleeting or incidental use in an audiovisual work.

The documentary and biographical carve-out has a condition attached that the news carve-out does not, and it is the one that will be litigated. A biopic may synthesise a performance; it may not present the synthesis as authentic participation. Where the line between dramatisation and false impression falls has not been settled by any California appellate decision construing the amended section as at the date on this page, and predicting it would be guessing. What can be said is that the condition is drafted around the audience’s impression, not the producer’s intent.

Damages, and the living-performer companion

Remedies come from section 3344.1 as it stood: the claimant may recover the greater of actual damages or a statutory minimum, together with any profits from the unauthorised use that are attributable to it, and the prevailing party may recover attorney’s fees and costs. The statutory floor in section 3344.1 is $10,000. That figure is small relative to the profit disgorgement, which is where the real exposure sits in any case involving a released commercial work — and it is orders of magnitude below the per-violation structure of Illinois BIPA, because this statute counts works and that one counts scans.

AB 1836 travelled with AB 2602, which addresses the living side of the same problem by making a contract provision unenforceable where it permits the creation and use of a digital replica in place of work the performer would otherwise have done, unless the provision contains a reasonably specific description of the intended uses and the performer was represented by counsel or by a union. Between them, the two bills are the legislative output of the 2023 SAG-AFTRA dispute, and reading either without the other gives half the picture.

Finally, this is a distinct question from whether an AI-generated performance is itself protectable by copyright, which turns on human authorship and is covered in the AI output copyright page. A studio can hold no copyright in a synthesised performance and still be liable under section 3344.1 for making it — the two regimes are independent, and clearing one does not clear the other.