California's Digital-Replica Statutes: AB 2602 and AB 1836 Split the Living from the Dead

This is a legislation post: it analyzes two enacted California statutes, not a court decision. On September 17, 2024, Governor Gavin Newsom signed Assembly Bill 2602 and Assembly Bill 1836 — companion measures that emerged from the 2023 SAG-AFTRA strike’s anxieties about generative AI. They take deliberately different routes. AB 2602 adds Section 927 to the California Labor Code and polices contracts: it voids agreements that purport to let a studio use a living performer’s digital replica without informed, specifically described consent and professional representation. AB 1836 amends Civil Code § 3344.1 — California’s post-mortem right of publicity — to create a cause of action against anyone who produces or distributes an AI digital replica of a deceased personality without estate consent. One protects the living through contract law; the other protects the dead through property law. Read together, they form California’s answer to the digital-replica problem, and both took effect January 1, 2025.

At a glance

• AB 2602 (Labor Code § 927): voids contract provisions allowing use of a living individual’s “digital replica” in new performances absent a specific description of the intended use and representation by counsel or a union; effective January 1, 2025
• AB 1836 (amends Cal. Civ. Code § 3344.1, Stats. 2024, ch. 258): creates liability for producing, distributing, or making available a digital replica of a deceased personality’s voice or likeness in audiovisual works or sound recordings without estate consent; effective January 1, 2025
• Signed: September 17, 2024, by Gov. Gavin Newsom; both bills authored to address generative-AI concerns raised during the 2023 SAG-AFTRA strike
• Damages (AB 1836): the greater of $10,000 or actual damages, plus profits attributable to the use
• Exceptions (AB 1836): news and public affairs, comment, criticism, scholarship, satire, parody, documentary and biographical works, and fleeting or incidental uses

AB 2602: consent cannot be buried in boilerplate

AB 2602 attacks the problem at its commercial root — the contract. The fear voiced during the strike was not only that studios would generate performers without permission, but that they would extract permission in advance through broad, opaque clauses: a one-line grant in a deal memo authorizing “use of your digital double in any medium now known or later devised.” AB 2602 makes such a provision unenforceable.

Under new Labor Code § 927, a contract provision allowing the use of a digital replica of an individual’s voice or likeness — in place of work the individual would otherwise have performed in person — is unenforceable unless two conditions are met. First, the provision must contain a “reasonably specific description” of the intended uses of the replica; a blanket, open-ended grant will not do. Second, the individual must have been represented either by legal counsel who negotiated on their behalf or by a labor union under a collective bargaining agreement that addresses digital replicas. The statute defines “digital replica” as a computer-generated, highly realistic representation readily identifiable as the individual, used in a new performance the individual did not actually perform.

The mechanism is elegant: AB 2602 does not forbid digital replicas. It forbids uninformed consent to them. It shifts power to performers and their representatives by making specificity and representation prerequisites to a valid grant.

AB 1836: the post-mortem right reaches the AI ghost

AB 1836 addresses a different scenario — the use of a deceased star. California has long recognized a descendible, post-mortem right of publicity in Civil Code § 3344.1, protecting the name, voice, signature, photograph, and likeness of a “deceased personality” for 70 years after death and vesting it in heirs and assignees. AB 1836 extends that protection expressly to AI digital replicas.

The amendment creates liability for any person who produces, distributes, or makes available the digital replica of a deceased personality’s voice or likeness in an expressive audiovisual work or sound recording, without prior consent from the estate or other rightsholder. The remedy tracks § 3344.1’s existing structure: damages of the greater of $10,000 or the actual damages suffered, plus any profits from the unauthorized use attributable to it, along with attorney’s fees.

Critically, AB 1836 carries robust First Amendment carve-outs. Consent is not required for uses in news, public affairs, or sports broadcasts; for comment, criticism, scholarship, satire, or parody; for documentary, historical, or biographical works (unless the replica is so realistic it is presented as authentic when it is not); or for fleeting and incidental uses. These exceptions are what keep the statute from functioning as a backdoor ban on depicting historical figures, and they mirror the long-standing limits on § 3344.1.

Two statutes, one strategy

The division of labor is the point. AB 2602 is a labor and contract statute aimed at the relationship between a living performer and an employer; its remedy is unenforceability, and its beneficiaries are working actors and their unions. AB 1836 is a property and tort statute aimed at unauthorized exploitation of the dead; its remedy is damages and disgorgement, and its beneficiaries are estates. A studio doing AI replica work now faces two distinct compliance questions: for a living performer, is our consent specific enough and was the talent properly represented?; for a deceased one, do we have estate consent, or does an exception apply?

These laws also coexist with the baseline right of publicity that already governs the living. Civil Code § 3344 and the common-law right continue to apply to unauthorized uses of a living person’s identity generally; AB 2602 layers a contract-validity rule on top of that baseline rather than replacing it. The result is a stack of overlapping protections rather than a single unified regime — which is precisely why a federal solution like the proposed NO FAKES Act remains under discussion.

Open questions

The statutes are new and largely untested, leaving real ambiguity. How specific must a “reasonably specific description” be under AB 2602 — does naming a film and a category of uses suffice, or must each scene be enumerated? Will AB 2602’s union-or-counsel requirement reshape non-union and influencer deals, where neither is standard? On AB 1836, how will courts police the line between a permitted “biographical” or “documentary” replica and an impermissible one “presented as authentic”? How do these state laws interact with federal copyright preemption when the replica appears in a fixed audiovisual work? And because AB 1836 incorporates § 3344.1’s 70-year post-mortem term, will estates of mid-twentieth-century stars become active enforcers against AI recreations? Finally, choice-of-law fights loom: a replica produced outside California but distributed nationally raises hard questions about which state’s regime governs.

Implications

• For studios and producers: AI replica clauses must now be drafted with specificity and against a backdrop of mandatory representation for the living and estate consent for the dead. Boilerplate grants are unenforceable under AB 2602.
• For performers and unions: AB 2602 hands negotiating leverage back to talent by making informed, represented consent a precondition to any valid digital-replica grant.
• For estates: AB 1836 turns the post-mortem right of publicity into an express tool against AI recreations, with statutory damages and disgorgement of profits.
• For the federal debate: California’s two-track approach illustrates why the patchwork is hard to navigate — and why proponents of the federal NO FAKES Act argue a national standard is needed.

Frequently asked questions

Are these court decisions? No. AB 2602 and AB 1836 are enacted California statutes, signed September 17, 2024 and effective January 1, 2025. They create new rights and rules; how courts apply them is still developing.

What is the difference between the two laws? AB 2602 (Labor Code § 927) governs contracts with living performers, voiding grants of digital-replica rights that lack a specific description and professional representation. AB 1836 amends the post-mortem right of publicity (Civil Code § 3344.1) to let estates sue over unauthorized AI replicas of deceased personalities.

Do these laws stop filmmakers from depicting real people? No. AB 1836 contains broad exceptions for news, commentary, criticism, satire, parody, and documentary or biographical works, so long as a realistic replica is not falsely presented as authentic. The laws target unauthorized commercial replicas, not expressive depiction generally.

Authorities and sources

• AB 1836 text and chaptering: AB-1836 (leginfo.legislature.ca.gov).
• AB 2602 text: AB-2602 (leginfo.legislature.ca.gov).
• Signing announcement: Gov. Newsom, “Governor Newsom signs bills to protect digital likeness of performers”.
• Analysis: Manatt, “California Enacts a Suite of New AI and Digital Replica Laws”; Proskauer, “California Enacts Generative AI Law Addressing ‘Digital Replicas’”; Perkins Coie, “In a Single Day, California Enacts Five Bills”.