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

> California's two 2024 digital-replica laws take different routes. One voids consent-by-contract for living performers; the other extends the post-mortem right of publicity to AI replicas of the deceased. Together they reset the rules for Hollywood.

Topic: Right of Publicity  |  Author: Lidiia Levitska  |  Source: Intellectual Property Law (outsideipcounsel.com)
Canonical: https://outsideipcounsel.com/blog/california-ab-1836-ab-2602-digital-replica-laws/


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 (AB 1836 = Stats. 2024, ch. 258; AB 2602 = Stats. 2024, ch. 259); both bills authored to address generative-AI concerns raised during the 2023 SAG-AFTRA strike
- **Damages (AB 1836):** under new § 3344.1(a)(2)(A)(i), the greater of $10,000 or actual damages. That paragraph applies "[n]otwithstanding paragraph (1)," and unlike § 3344.1(a)(1) it does not itself add 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.

Read the mechanics closely, because the statute is narrower than the headlines suggest. Labor Code § 927(a) says such a provision "is unenforceable only as it relates to a new performance, fixed on or after January 1, 2025, by a digital replica of the individual if the provision meets all of the following conditions." The conditions are cumulative: the provision allows creation and use of a digital replica in place of work the individual would otherwise have performed in person; the provision does not include a "reasonably specific description" of the intended uses; *and* the individual was not represented by legal counsel who negotiated the digital-replica license (with commercial terms stated clearly and conspicuously in a signed or initialed writing) or by a labor union whose collective bargaining agreement expressly addresses uses of digital replicas. Because all conditions must be met, either specificity or representation is enough to keep the provision alive. There is also a safe harbor: a missing description does not void the provision if the uses are consistent with the terms of the services contract and "the fundamental character of the photography or soundtrack as recorded or performed." 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 targeted rather than prohibitory: AB 2602 does not forbid digital replicas. It withdraws enforceability from the narrow case where an open-ended grant meets an unrepresented performer. It shifts power to performers and their representatives by making specificity or representation the price of a grant that will hold up.

## 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 sits in new § 3344.1(a)(2)(A)(i): the greater of $10,000 or the actual damages suffered. Note the drafting. That paragraph opens "[n]otwithstanding paragraph (1)," and where § 3344.1(a)(1) expressly adds "any profits from the unauthorized use that are attributable to the use," the digital-replica paragraph does not repeat that language. Its floor is higher than paragraph (1)'s $750, but disgorgement is not written into it. Attorney's fees are section-wide: the prevailing party "in any action under this section" is entitled to fees and costs.

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 a $10,000 damages floor, 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, or 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. That is precisely why a federal solution like the proposed NO FAKES Act remains under discussion. It is worth being precise about that bill's status: the NO FAKES Act (S. 4591) has not been enacted. It was advanced by the Senate Judiciary Committee on June 18, 2026, and as of July 2026 there is still no federal digital-replica right, so California's statutes remain state law operating against no federal baseline.

## 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 for the living now need either a reasonably specific description of the intended uses or a properly represented performer, and replicas of the dead need estate consent or an exception. A boilerplate grant signed by an unrepresented performer is the case AB 2602 actually reaches.
- **For performers and unions:** AB 2602 hands negotiating leverage back to talent, and it is the union-CBA and counsel routes that preserve a studio's grant, which puts representation at the center of the deal.
- **For estates:** AB 1836 turns the post-mortem right of publicity into an express tool against AI recreations, with a $10,000 statutory floor.
- **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 (Stats. 2024, ch. 258): [AB-1836 (leginfo.legislature.ca.gov)](https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202320240AB1836).
- AB 2602 text and chaptering (Stats. 2024, ch. 259): [AB-2602 (leginfo.legislature.ca.gov)](https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202320240AB2602).
- Codified text: [Cal. Civ. Code § 3344.1](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=3344.1); [Cal. Lab. Code § 927](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=LAB&sectionNum=927).
- Signing announcement: [Gov. Newsom, "Governor Newsom signs bills to protect digital likeness of performers"](https://www.gov.ca.gov/2024/09/17/governor-newsom-signs-bills-to-protect-digital-likeness-of-performers/).
- Analysis: [Manatt, "California Enacts a Suite of New AI and Digital Replica Laws"](https://www.manatt.com/insights/newsletters/client-alert/california-enacts-a-host-of-new-ai-and-digital-rep); [Proskauer, "California Enacts Generative AI Law Addressing 'Digital Replicas'"](https://www.proskauer.com/blog/california-enacts-generative-ai-law-addressing-digital-replicas-of-performers); [Perkins Coie, "In a Single Day, California Enacts Five Bills Tackling Digital Replicas and Deepfakes"](https://www.jdsupra.com/legalnews/in-a-single-day-california-enacts-five-2419137/).