Does the Right of Publicity Survive Death in California?

Quick Answer

Sometimes. California has three rights of publicity, not one. The Civil Code § 3344 statutory right and the common law right both end at death. Civil Code § 3344.1 creates a separate post-mortem right that can survive for 70 years — but only when threshold conditions, including California domicile at death and commercial value at death, are met. The Marilyn Monroe litigation shows how a post-mortem right can fail to vest entirely. The 2024–2025 amendments (AB 1836, AB 2602, SB 683) extend both statutes to AI “digital replicas” and add expedited injunctive relief.

Key Takeaways

• California has three distinct rights of publicity: the § 3344 statutory right (living persons), the common law right, and the § 3344.1 post-mortem statutory right.
• The § 3344 right and the common law right end at death. Neither passes to the estate.
• Civil Code § 3344.1 is the post-mortem statute: 70 years after death, transferable and descendible, available only to those whose identity had commercial value at the time of death.
• The post-mortem right can fail to vest — most commonly, where the deceased was not domiciled in California at death, as the Monroe cases illustrate.
• 2024–2025 legislation (AB 1836, AB 2602, SB 683) extended California’s publicity statutes to AI-generated “digital replicas” and added injunctive relief, including a two-business-day compliance window for removal orders.
• Soundalike and lookalike doctrine under Midler and Waits still matters — and is doing real work in the AI voice-cloning context.
• Courts are actively defining how publicity doctrines apply to AI-generated content; the law is unsettled and moving quickly.

Where These Issues Come Up

Right-of-publicity questions reach far beyond the obvious commercial-endorsement context. In our experience, they recur in:

• Estate and trust planning — identifying, valuing, and devising publicity rights; coordinating with copyright, trademark, and trust-administration counsel; addressing domicile, registration with the Secretary of State, and chain-of-title questions.
• Entertainment and licensing transactions — talent agreements, deepfake and digital-replica clauses, life-rights deals, biographical works, posthumous projects, and brand-licensing programs.
• Trademark, copyright, and unfair-competition litigation — where name, voice, or image claims overlap with Lanham Act § 43(a), Cal. Bus. & Prof. Code § 17200, and copyright theories.
• Insurance coverage disputes — advertising-injury and personal-injury coverage analysis for likeness, voice, and digital-replica claims.
• Mediation and arbitration — private resolution of high-value publicity, soundalike, and biographical-content disputes, including pre-litigation takedown negotiations.
• Cross-border and choice-of-law disputes — coordinating California, New York, and foreign-jurisdiction theories where the decedent or use has multi-state exposure.

California Recognizes Three Different Rights of Publicity

The right of publicity protects a person’s ability to control the commercial use of their identity. The common confusion is treating it as a single right. In California it is not. Identifying which right is at issue is usually the first step in any analysis.

1. The Living Person’s Statutory Right — Civil Code § 3344

Civil Code § 3344 protects living people. It creates a statutory claim when someone knowingly uses another person’s name, voice, signature, photograph, or likeness on or in products, merchandise, or goods, or for purposes of advertising, selling, or soliciting, without consent. Remedies historically include the greater of statutory or actual damages, the defendant’s attributable profits, punitive damages in appropriate cases, and attorney’s fees and costs. As of SB 683 (2025), injunctive relief — including TROs and preliminary injunctions — is now expressly available under § 3344, with a two-business-day compliance window once an order to remove, recall, or cease publication is served.

Section 3344 has no post-mortem operation of its own. The statutory right ends at death.

2. The Common Law Right — Also Ends at Death

California separately recognizes a common law right of publicity. In Lugosi v. Universal Pictures, 25 Cal. 3d 813 (1979), the California Supreme Court held that Bela Lugosi’s personality rights did not pass to his heirs the way a copyright would. Because the common law right is rooted in the law of privacy, it is treated as personal — not freely transferable or descendible — and it expires by operation of law when the person dies.

The common law right overlaps with — but is not identical to — § 3344. It reaches uses outside the statute’s express list, has no “knowing” scienter requirement, and is the doctrinal home of the Ninth Circuit’s soundalike line of cases (discussed below).

3. The Post-Mortem Statutory Right — Civil Code § 3344.1

The right that does survive death is a separate statute. California’s post-mortem right of publicity was first enacted in 1984 (originally codified as Civil Code § 990), then renumbered as § 3344.1 in 1999 and amended — through what became known as the Astaire Celebrity Image Protection Act — to extend its duration. In general terms, under § 3344.1:

• The right lasts 70 years after death.
• It is a transferable, licensable, and descendible property right — in life or by will, trust, or other instrument; if not so transferred, it passes by intestate succession.
• It applies to a “deceased personality” — a person whose identity had commercial value at the time of death, or whose name, voice, signature, photograph, or likeness acquired such value within seventy years thereafter.
• A rights holder generally must register a claim with the California Secretary of State, and the statute limits recovery for uses occurring before registration.
• The statute contains exemptions — for news, public affairs, sports, and political campaigns, and for expressive works such as books, plays, films, television, magazines, music, and original works of fine art.

The Marilyn Monroe Cases: Why a 70-Year Right Can Still Fail

If § 3344.1 grants a 70-year post-mortem right, why is Marilyn Monroe’s image so often treated as public domain? Because the post-mortem right can fail to vest if threshold conditions are not met. Two issues converged in the Monroe litigation.

Timing and transfer. In Shaw Family Archives Ltd. v. CMG Worldwide, Inc., 486 F. Supp. 2d 309 (S.D.N.Y. 2007), the court reasoned that Monroe could not have devised by will a right of publicity that did not exist under the law in effect when she died in 1962. California responded: S.B. 771 (2007) amended § 3344.1 to make the right retroactive and devisable, including by a residuary clause executed before the statute’s effective date.

Domicile. The legislative fix did not resolve the estate’s central problem — where Monroe was domiciled at death. California’s post-mortem right protects those domiciled in California when they died. For decades, and for estate-tax purposes, Monroe’s estate had taken the position that she died a New York domiciliary. In Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983 (9th Cir. 2012), the Ninth Circuit held that the estate was judicially estopped from later claiming California domicile to capture the § 3344.1 right. Because New York did not then recognize a comparable post-mortem right, Monroe’s publicity rights were treated as having passed into the public domain.

The cases remain a frequently cited illustration of a recurring theme in publicity practice: positions taken years earlier — in probate, tax, choice-of-law, or related proceedings — can shape, and sometimes defeat, a later right-of-publicity claim. Counsel structuring a celebrity estate today should plan around this from the outset.

Soundalikes, Lookalikes, and the Doctrinal Bridge to AI

The right-of-publicity vocabulary that matters most for AI-generated content predates AI by decades. Two Ninth Circuit cases laid the foundation:

Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988). When a singer’s distinctive voice is deliberately imitated to sell a product, California common law protects the singer against that imitation — even though the imitator’s own voice is not the singer’s. The court treated voice as an attribute of identity, not merely a sound.

Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992). The court extended Midler, affirming a jury verdict for Tom Waits where a snack-chip commercial used a Waits soundalike. The damages framework included both economic loss and injury to reputation.

Together, Midler and Waits establish that an actor who never said or sang the words at issue can still be liable when the audience would identify the voice as the plaintiff’s. That is precisely the analytical territory generative-AI voice cloning now occupies — with the added wrinkle that the “imitator” may be a model rather than a person, and the audio may never have been performed by anyone at all.

Recent Statutory Developments: AI, Digital Replicas, and New Remedies (2024–2025)

California’s publicity statutes have changed significantly in response to generative AI. Three measures, all signed in close succession, reshape both substantive coverage and remedies.

AB 1836 (signed September 17, 2024; effective January 1, 2025) amended Civil Code § 3344.1 to address digital replicas of deceased performers. It targets producing or distributing an AI-generated replica of a deceased personality’s voice or likeness in an expressive audiovisual work or sound recording without consent from the estate, subject to exemptions tracking the familiar news, commentary, scholarship, satire, parody, and expressive-work principles. The bill defines “digital replica” as a computer-generated, highly realistic electronic representation readily identifiable as the voice or visual likeness of an individual, in which the actual individual did not perform or appear, or did so but the fundamental character of the performance or appearance has been materially altered.

AB 2602 (signed September 17, 2024). Certain contract provisions allowing the creation and use of a digital replica of an individual’s voice or likeness — in place of work the individual would otherwise perform — are unenforceable as to new performances fixed on or after January 1, 2025, unless the contract reasonably describes the intended uses and the individual was professionally represented by counsel or a labor union in negotiating those terms. This is essentially a post-SAG-AFTRA-strike codification of bargaining-leverage protections for performers facing digital-replica clauses.

SB 683 (signed October 10, 2025) amended Civil Code § 3344 — the living-persons statute — in two important ways. First, it expressly extends “voice” and “likeness” to include digital replicas. Second, it adds injunctive relief, including temporary restraining orders and preliminary injunctions, with a two-business-day compliance window once a court orders removal, recall, or cessation of publication. That window materially changes injunction strategy in publicity disputes; counsel evaluating a likely TRO posture should plan for that timeline at the outset.

Because effective dates and exact statutory text in this area have changed rapidly, the current code should always be consulted directly.

Recent Cases Testing the Right of Publicity Against AI

Litigation is beginning to test how these doctrines apply to AI-generated content. A few recent matters illustrate the open questions — and that outcomes so far have been mixed.

Lehrman v. Lovo, Inc., No. 23-cv-08269 (S.D.N.Y. July 10, 2025). Two professional voice actors alleged that an AI text-to-speech company used recordings of their voices — obtained through a freelance platform on the representation that the audio was for limited internal use — to create and sell synthetic voice clones. On a motion to dismiss, the court dismissed the federal Lanham Act claim and most of the federal copyright claims, reasoning that the actors’ voices functioned as the product rather than as a source-identifying mark, and that vocal characteristics themselves are not independently copyrightable. The court granted leave to amend a narrower copyright theory tied to training-data use, and allowed the state right-of-publicity claims (under New York Civil Rights Law §§ 50 and 51), breach-of-contract claims, and consumer-protection claims to proceed. The court further indicated that the recently added “digital replica” provision of New York’s Civil Rights Law could plausibly apply to AI-generated voice clones, even absent a visual likeness. The case applies New York law, but the reasoning is widely watched in California publicity practice.

Main Sequence, Ltd. v. Dudesy, LLC (C.D. Cal., filed January 2024; settled April 2024). The estate of comedian George Carlin sued the creators of a podcast over an AI-assisted comedy special presented in Carlin’s voice and style. The matter settled in early April 2024; the defendants agreed to remove the special and were permanently enjoined from using Carlin’s image, voice, or likeness without the estate’s written permission. It is widely regarded as the first AI-generated-likeness publicity dispute to resolve.

Non-litigation disputes are also shaping norms — the 2024 OpenAI “Sky” voice incident involving Scarlett Johansson, which OpenAI resolved by pausing the voice without litigation, is a frequently cited example.

The common thread: courts and legislatures are actively working out how name, image, voice, and likeness protections apply to AI, and the answers are not yet settled.

What This Means in Practice

A few features of California law follow from the discussion above and are relevant to both rights-holders and those who use names, voices, and likenesses:

• Identify the right at issue. The living-person right (§ 3344), the common law right, and the post-mortem right (§ 3344.1) have different elements, durations, and defenses.
• Threshold conditions matter. For the post-mortem right, domicile at death, commercial value at death, the transfer history of the right, and registration with the Secretary of State can be outcome-determinative.
• Earlier positions can carry forward. As the Monroe cases show, positions taken in probate, tax, or related proceedings may bind — and sometimes defeat — a later publicity claim through judicial estoppel.
• Statutory exemptions are central. News, public affairs, sports, political, and expressive-work exemptions frequently drive the analysis — particularly when the AI-generated work has any plausible expressive character.
• Soundalike doctrine still works. Midler and Waits remain available even where the statute does not reach, and may travel further than the statute in some AI contexts.
• Injunction strategy is now front-loaded. Under SB 683, the two-business-day compliance window for removal/recall orders changes both plaintiff and defendant playbooks at the TRO stage.
• AI changes the landscape. Digital-replica provisions, new injunctive remedies, and a developing body of case law mean older assumptions should be re-examined — particularly in pre-litigation diligence on talent, estate, and brand-licensing matters.

None of this is a substitute for advice on a specific situation — these questions are fact-intensive and the law is evolving.

Frequently Asked Questions

Does California Civil Code § 3344 protect a person after death?

No. Section 3344 protects living persons. The post-mortem right is governed by a separate statute, Civil Code § 3344.1.

How long does the post-mortem right of publicity last in California?

Under Civil Code § 3344.1, the post-mortem right generally lasts 70 years after the person’s death.

Can my estate enforce my right of publicity after I die?

If you were domiciled in California at death and your identity had commercial value at death (or acquires it within 70 years thereafter), Civil Code § 3344.1 generally allows the right to be transferred and enforced by the rights holder. Registration with the California Secretary of State affects recovery for pre-registration uses. The § 3344 statutory right and the common law right, by contrast, do not survive death.

Why is Marilyn Monroe’s likeness often described as public domain?

Courts in the Monroe litigation concluded that her post-mortem publicity right did not vest under California law, in significant part because her estate had taken the position — for estate-tax purposes — that she died domiciled in New York, which did not then recognize a comparable post-mortem right. The estate was held judicially estopped from later claiming California domicile.

Does California’s right of publicity cover AI-generated voices and likenesses?

Recent legislation — AB 1836, AB 2602, and SB 683 — extended California’s publicity statutes to address AI-generated “digital replicas.” The pre-AI Midler/Waits soundalike doctrine also continues to apply. How these provisions and doctrines combine in specific disputes is still being worked out by the courts.

Is the right of publicity the same in every state?

No. It is a creature of state law and varies considerably. Some states recognize broad post-mortem rights; others recognize little or none. Domicile and choice-of-law questions are often important.

How Long & Associates Can Help

Right-of-publicity matters sit at the intersection of intellectual property, estate planning, contract, and litigation — and, as the Monroe cases show, decisions made long before a dispute arises can shape its outcome. Long & Associates handles high-stakes intellectual property and business litigation, including trials and appeals, and represents clients on both sides of publicity and likeness disputes — those seeking to enforce rights and those defending against claims. The firm regularly serves as co-counsel and appellate counsel to other firms in complex publicity matters.

Attorney Michael A. Long is a registered patent attorney (USPTO) with appellate experience in this area, having worked on the Ninth Circuit appeal in Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC. If you are evaluating, licensing, transferring, enforcing, or defending a right of publicity — or referring a publicity matter to outside counsel — we can help you assess where you stand.

Related practice areas: Intellectual Property · Entertainment Law · Copyright Litigation · Patent Litigation & Prosecution · Insurance Coverage · Representative Cases · About Michael A. Long

Authorities Cited

California statutes: Cal. Civ. Code § 3344; Cal. Civ. Code § 3344.1; Cal. S.B. 771 (2007); Cal. AB 1836 (2024); Cal. AB 2602 (2024); Cal. SB 683 (2025).

Cases: Lugosi v. Universal Pictures, 25 Cal. 3d 813 (1979); Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988); Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992); Shaw Family Archives Ltd. v. CMG Worldwide, Inc., 486 F. Supp. 2d 309 (S.D.N.Y. 2007); Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983 (9th Cir. 2012); Lehrman v. Lovo, Inc., No. 23-cv-08269 (S.D.N.Y. July 10, 2025); Main Sequence, Ltd. v. Dudesy, LLC (C.D. Cal. 2024).