California Considers a Digital Replica Law for the Dead

By Jennifer E. Rothman
March 21, 2024

Joining the frenzy of states trying to address concerns over artificial intelligence (AI) and particularly concerns expressed by the recording industry, Assembly Member Rebecca Bauer-Kahan introduced a right of publicity bill in the California legislature, AB 1836, that would add a digital replica provision to California's postmortem right of publicity statute, Cal. Civ. Code § 3344.1. The bill is currently in the early stages and has been referred to Committees, including the Judiciary Committee and the Committee on Privacy and Consumer Protection.

The Bill Would Create a New Digital Replica Right

California’s current postmortem publicity statute limits claims arising out of the use of a deceased individual’s name, likeness, or voice to uses “on or in products, merchandise, or goods, or for purposes of advertising and selling.” AB 1836 would add liability for unauthorized uses of a “digital replica of a deceased personality in an audiovisual work or sound recording, in any manner related to the work performed by the deceased personality while living” without regard to whether the replica is used on a product or for advertising.

Liability would extend to those who “produce[], distribute[], or make[] available a digital replica of a deceased personality.” This expansion seeks to address concerns that dead people's voices and likenesses could be recreated using AI and other technology to create new performances without permission from their estates or others who may own or control their postmortem identities.  This is of particular concern to the recording industry which fears that new performances by dead people could compete with existing recordings. Copyright law might already protect the recording industry, but the litigation about such AI-generated sound files may take years of litigation to resolve.

The bill defines a digital replica as “a simulation of the voice or likeness of an individual that is readily identifiable as the individual and is created using digital technology.” 

Violations of this digital replica right would be subject to $10,000 in statutory damages or the recovery of actual damages.

In addition to greatly expanding the sweep of the current postmortem provision on its face, the bill also would expand the postmortem right's scope by eliminating the existing exemption for uses in a “play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, work of political or newsworthy value,” or advertisements for such uses if the use is of a "digital replica." The elimination of this exclusion would significantly restrict constitutionally-protected speech and provides no safe harbors or guidelines for fair uses. This is concerning, particularly for the film and video game industries, and will likely lead to significant litigation about when uses are protected by the First Amendment, as well as when uses of preexisting copyrighted works preempt such state law claims.

Definitional Ambiguities Part I--What is a "Digital Replica"?

There are some ambiguities about what the bill would do as currently drafted. For example, it is not clear whether the definition of "digital replica" includes the digital recording of live performances (while the person was alive) that capture actual performances by the individual. One could interpret the definition of digital replica as applying to such recordings which would be problematic, and might also apply to digital remastering. It could also, if read broadly, apply to an actor "simulating" the performance of a deceased individual that is captured in a digital format or that uses digital technology, including visual effects.  I don't think these applications are what is intended by the provision but this needs to be clarified in future versions of the bill.

If the bill seeks to target only AI-generated sound recordings and visual performances that would substitute for hiring the performer (if they were alive), it should be more explicit about this.  It is also unclear what happens if authorized copyrighted material is used in combination with AI technology. For example, does the provision apply to instances in which the actual performers’ voice is used and altered, perhaps with the underlying material licensed, or only to wholly independently generated sounds and images? I note that fully independent creation is not entirely possible as AI-generated sound recordings and audio-visual works require training data and information to produce outputs which rely on previously captured sounds and images of the decedent.

In addition, depending on the breadth of what is meant by “simulation,” this could encompass digital creations that were inspired by the style or sound of a deceased artist, but that do not deceive as to the person’s performance. The First Amendment and copyright law provide latitude to use another’s style and to remind people of another’s sound. This concern could potentially be addressed by clarifying what is meant by “readily identifiable” in this context to require a person hearing or seeing the recording or work to think the person had actually performed the work or that it was generated to give the appearance that they had done so (if they were alive). Disclaimers alone should not provide a basis for escaping liability for such simulations.  

Definitional Ambiguities Part II--What Does "Related to Work Performed While Alive" Mean?

The proposed digital replica provision like all of § 3344.1 is limited to those who died a “deceased personality.” A determination that requires a showing that the person died with “commercial value.”  The digital replica provision would also require a showing that the created audiovisual work or sound recording be “related to the work performed by the deceased personality while living.”  This is a very ambiguous requirement.

Even successful performers might not be protected under the proposed definition. What does “related to the work performed by the deceased personality” mean?  Would the heirs to a professional singer who is replicated in an AI-generated simulation of the singer painting not have a claim because the decedent was known as a singer and not a painter? The limitation could be interpreted even more narrowly; for example, if a digital replica uses a voice similar to Prince’s to create a heavy metal song, is that related enough to the work Prince made while alive for liability to attach or too different a style of performance to be considered "related to the work performed" while alive?

As a separate matter, there is no reason to limit postmortem protection to those who died with commercial value. Why should only the famous have a postmortem right to stop unauthorized uses of their identity on merchandise and advertising? Rather than address this problem, the proposed bill doubles down on it, extending the digital replication right only to deceased personalities. Why should our deceased loved ones be reanimated without permission solely because they weren’t successful professional performers? To the extent we want to extend postmortem rights, there is no basis to limit them only to the commercially valuable or famous. I have a new paper that addresses some of these issues with co-author Anita Allen titled Postmortem Privacy, forthcoming in the Michigan Law Review.

Still Time for Changes and Alternative Approaches

Hopefully, the California legislature will take its time to improve the proposed amendment to its postmortem bill before rushing through a problematic (as drafted) postmortem digital replica right.

If the state thinks it appropriate to address concerns over postmortem digital reanimation, it must leave room for creative works that have new actors perform roles as deceased individuals, or that use existing footage (for reporting or in fictionalized works), or that create new fair uses with cutting-edge technology.  Consider, for example, the scenes in Forrest Gump in which footage of real people was digitally altered to create a fictional world in which the main character engaged with famous public figures of the past. These sorts of uses should not be the target of a digital replica bill. Safe harbors would be helpful in this regard, as would clarifying what counts as a “simulation.”

The bill replaces all gendered language (e.g., “his or her”) with the gender-neutral “their” throughout § 3344.1. If the legislature wishes to make other improvements to current postmortem rights, there are other changes that would be wise to make.  The legislature should consider more specifically why it is protecting postmortem publicity rights and develop a proposal that furthers those interests, while balancing the social costs of doing so.

Here are just a few possible updates to consider: First, the postmortem right should apply to those who die without regard to their “commercial value.”

Second, the postmortem right should limit with whom the right can vest and preclude its transferability both before death and thereafter to unrelated third-parties.  Extending postmortem rights of publicity should not be about making unrelated corporations wealthy but about protecting the choices and wishes of the dead and their families and loved ones, as well as respecting our norms around treatment of the dead. The current law sets up the very real danger of corporations that profit from the dead preying on aging celebrities; adding a digital replica right without protections against this possibility is likely to only exacerbate this potential exploitation without any justifiable social benefit of doing so.

Finally, the proposed postmortem digital replica right will further force unwanted commercialization of the dead through the estate tax system which values "property" of the estate at its highest and best use, which is understood to be a fully commercialized use.  The California legislature could address this concern by expressly allowing for heirs or families of the deceased to not  commercialize the deceased and/or by excluding such rights from being considered "property" of the estate of a decedent.