The Modern East-West Divide: AI and Publicity Rights in New York and California
3.17.2025
In the spring of 2024, the biggest story in entertainment was the rap battle between Aubrey Graham (better known as Drake) and Kendrick Lamar, which sent shockwaves through the industry. Though the bad blood between the artists and the songs ultimately caught people’s eyes, Drake’s use of a digital replica of the deceased rapper Tupac in the song “Taylor Made Freestyle” represented the way artificial intelligence and other modern technologies may strain the historical approach to music law and the right of publicity in the near future. California and New York, representing the two biggest entertainment markets in the United States, have approached the problem differently, heralding a deep divide in state law that could shatter any hopes of consistency in applying the right of publicity moving forward.
California’s Approach
In September, the California legislature passed AB 1836, a dramatic expansion in post-mortem publicity rights, making two primary changes to the law. The most significant change provides for a cause of action under the statute for appropriating a deceased personality’s name, image or likeness via a “digital replica.”[i]
This primarily derives from a line of cases interpreting what constitutes a protectable “likeness” under Section 3344.[ii] The first case, Midler v. Motor Co., held that the term likeness only refers to visual imitation and not to vocal imitation.[iii] Since the defendant had not used Bette Midler’s voice, and only a person who sounded like her, Midler was unable to recover under Section 3344.[iv] White v. Samsung further limited the statutory definition of “likeness” by finding that some level of resemblance was required in order to recover under Section 3344.[v] It should be noted, however, that the plaintiffs in these lines of cases were able to recover under the common law, which allowed recovery for both visual and vocal imitations that were sufficiently identifiable. However, without the fee-shifting provision and the statutory minimum, prospective plaintiffs with less fame than Bette Midler, Vanna White and Tom Waits were left with little remedy for infringements by imitation.
Section 3344.1(a)(1)(A)(i) patches holes in the law to protect deceased celebrities’ publicity rights, particularly as it pertains to vocal likenesses. The section provides that anyone using a digital replica of a deceased personality’s voice or likeness is liable, subject to the exceptions provided in Section 3344.1(a)(1)(A)(ii). While it is arguable that appropriation via AI would be covered as a visual likeness if sufficiently realistic, Section 3344.1(a)(1)(A)(i) preemptively answers any question on this issue.
The second change provides far higher minimum damages when using a digital replica of a deceased celebrity. Instead of the $750 minimum provided for uses of a deceased celebrity’s actual image or likeness, a person that uses a digital replica without consent can find themselves on the hook for, at minimum, $10,000 per use.[vi]
There are, however, a few exceptions to this right. First, the use must be a “digital replica” used in an “expressive audiovisual work or sound recording.”[vii] Further, the section does not apply to uses in connection with public commentary,[viii] common fair use categories,[ix] documentary or biographical works,[x] advertising for any of these categories[xi] or fleeting or incidental uses.[xii]
Interpreting exactly how this section will apply can be tricky. The general protection afforded to deceased celebrities applies to use “on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services.” However, this section of the law only requires the use to be in an “expressive audiovisual work or sound recording,” subject to the above restrictions.
The change may appear slight, but it could have a dramatic impact on the types of arguments that will emerge. This is where we return to the spring of 2024. After the release of “Like That,” the “Metro Boomin’” and “Future” song that started the battle due to Lamar’s feature verse, Drake released two songs in response. The second, “Taylor Made Freestyle,” featured an AI-generated replica of the late West Coast icon, Tupac Shakur, to stoke a response. As Lamar is arguably the most important hip-hop artist from the West Coast since Tupac himself, it was clear from the start that Drake did not have consent from Shakur’s estate.[xiii] Numerous legal questions emerged at the time and retrospectively in the wake of this use.
For starters, the use would not have technically qualified as a statutory appropriation of the right of publicity under Section 3344.1, as the statute requires more than just mimicking or replication to apply. Section 3344.1(a)(1)(A) requires that an appropriation of a personality’s voice be used for “products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent.” Whether ethical or not, it is clear that Drake’s use was not related to the marketing or sale of a product.[xiv] The requirement of commercial use would thus likely operate to squash a claim against Drake’s use had it come under Section 3344.1(a)(1)(A).
Section 3344.1(a)(2)(A), on the other hand, does not require a commercial element to the use. It only requires that an appropriation of a personality’s voice or likeness via a digital replica be used “in an expressive audiovisual work or sound recording without prior consent.”[xv] If it had been passed at the time of the use, the question would have centered on whether the use fits into any exception. As the statute is structured in such a way that carves out exceptions to prohibited use, there is a burden of proof question, which brings with it a question about the necessary elements of a pleading.
It is possible that a court would require the plaintiff only to prove that the digital replica was used in an expressive audiovisual work or sound recording and then shift the burden to the defendant to prove that the use fell under one of the exceptions. Such an interpretation would generally accord with that of fair use in copyright, which is regarded as an affirmative defense.[xvi]
If a court chooses a different route and requires the plaintiff to make a prima facie showing that the use does not fit within an exemption, then both the burden of proof and required pleadings will be different. From a procedural standpoint, a plaintiff would be required to plead that a use does not fall under one of the exceptions, rather than forcing a defendant to raise it as an affirmative defense. This may not have a dramatic impact, as California generally applies a liberal standard when considering amendments to the pleadings.
However, substantively, it could put great strain on a plaintiff. Proving a negative is far more difficult than proving a positive, so putting the burden on the plaintiff to show that the use does not fit an exception could raise the standard higher than that in Section 3344.1(a)(1)(A). Overall, drafting the section will make these cases harder for one of the litigants than normal. It simply depends on who bears the initial burden.
Given the structure of the section, and the punitive nature of the damages, it is reasonable to anticipate a court reading the exceptions as an affirmative defense. This is particularly so given the carve-out for fair use. For litigants seeking to wade into these untested waters, however, it may be prudent to include in the pleadings that a use does not fit into any of the exceptions listed in the section.
New York’s Approach
New York’s approach to this issue diverges from California’s in important ways, which could give those arguing for a federal right of publicity yet another data point if entertainers cannot protect their rights consistently.[xvii] It is perhaps unsurprising for a rap battle to highlight such different approaches to the right of publicity in the context of AI amongst the genre’s biggest historic rivals, but these differences could be a harbinger of things to come as the law is forced to develop for new technologies.
Civil Rights Law Section 50-f covers the statutory right of publicity in New York. A central difference between that and Section 3344.1 is the minimum statutory damages a prevailing plaintiff is entitled to recover. Section 50-f(2)(c)(i) imposes minimum damages of $2,000 for any violation of Section 50-f, whether or not a defendant appropriated a deceased personality’s publicity rights through a digital replica. Section 50-f’s approach to minimum damages suggests a more laissez-faire attitude towards AI-based appropriations, whereas Section 3344.1 takes a far more punitive approach.
This divide is further emphasized by the types of uses Section 50-f punishes.[xviii] While Section 3344.1 provides that any appropriation by a digital replica in an audiovisual work or sound recording is subject to liability, Section 50-f(2)(b) only punishes defendants for using “a deceased performer’s digital replica in a scripted audiovisual work as a fictional character or for the live performance of a musical work . . . if the use is likely to deceive the public into thinking it was authorized [by the personality’s estate].” It further states that a person is not liable under this section if “the person making such use provides a conspicuous disclaimer in the credits of the scripted audiovisual work, and in any related advertisement in which the digital replica appears, stating that the use of the digital replica has not been authorized by the person or persons specified in subdivision four of this section.”
Section 50-f(d) carves out numerous exceptions to the rule, many of which are similar to Section 3344.1’s exceptions.[xix] However, Section 50-f(d)(ii)’s exceptions that pertain specifically to digital uses diverge from Section 3344.1(B)(2)(A)(ii)’s in two important ways. First, it exempts defendants that use a digital replica in “works of political or newsworthy value, or similar works, such as documentaries, docudramas, or historical or biographical works, regardless of the degree of fictionalization.” This differs from Section 3344.1(B)(2)(A)(ii)(III), which only allows for “some degree of fictionalization” and prohibits uses that are “intended to create, and [do] create, the false impression that the work is an authentic recording in which the individual participated.” Second, Section 50-f(d)(ii)’s excuses “a representation of a deceased performer as himself or herself, regardless of the degree of fictionalization, except in a live performance of a musical work.”
The consequences of these differences become apparent when applying the law to Drake’s “Taylor Made Freestyle.” While Shakur’s estate would likely have a claim under Section 3344.1 if it were enacted before the song’s release, it’s apparent that Section 50-f would not have covered the appropriation of Tupac’s likeness if his estate was subject to New York’s laws. Since the musical performance was merely a video, rather than a live performance, the use would not be covered under Section 50-f(2)(b). Further, the replica of Tupac in the music video does not represent him as a fictional character and thus would not be covered by Section 50-f(2)(b).
One may expect the common law right of publicity to provide some form of consistency among these different approaches to AI. Indeed, it was the common law, rather than statutory law, that allowed personalities such as Vanna White, Bette Midler and Tom Waits to sustain their claims. However, New York does not recognize the common law right of publicity.[xx]
Regarding public policy, a central tension with regulating AI is balancing its use for productive artistic and commercial purposes while protecting the rights of artists, entertainers and workers. California and New York will provide an interesting case study to which pole we should gravitate more closely. However, until then, the only thing that seems clear is the East-West Coast rivalry is apparent.
This article appears in the Entertainment, Arts and Sports Law Journal, the publication of the Entertainment, Arts and Sports Law Section. For more information, please visit NYSBA.ORG/EASL.
Neville L. Johnson and Douglas L. Johnson are partners at Johnson & Johnson in Beverly Hills, CA, practicing entertainment, media, intellectual property and class action litigation.
Hunter S. Litterio is an associate at Johnson & Johnson. His practice focuses on aiding clients with a wide array of issues, and disputes, with a particular focus on music, film
Endnotes
[i] Cal. Civ. Code § 3344.1(a)(2)(A)(i). Though its Assembly Bill name is AB 1836, it will mainly be cited by its code number.
[ii] See, e.g., Sinatra v. Goodyear Tire & Rubber Co., 435 F.2d 711 (1970) (decided before the passage of § 3344, but relied upon in subsequent cases); Midler v. Motor Co., 849 F.2d 460, 463 (1988) (holding that “likeness” only refers to visual, not vocal imitation); Waits v. Frito-Lay, Inc., 978 F.2d 1093 (1992); White v. Samsung Electronics America, Inc., 971 F.2d 1395, 1397 (1992) (affirming Midler and holding that an impression of Vanna White did not sufficiently resemble her to sustain a cause of action under § 3344); but see Wendt v. Host Intern., Inc., 125 F.3d 806, 810 (1997) (holding that there was a triable issue of fact as to whether robots that were modeled according to the plaintiffs’ appearances were sufficiently impressionistic under § 3344).
[iii] Midler, 849 F.2d at 463.
[iv] Id.
[v] White, 971 F.2d at 1397. While Midler and White were unable to recover under the statutory law, they could maintain an action under the common law right of publicity.
[vi] Cal. Civ. Code § 3344.1(a)(2)(A)(i).
[vii] Id.
[viii] “[N]ews, public affairs, or sports broadcast or account.” § 3344.1(a)(2)(A)(ii)(I)
[ix] “[C]omment, criticism, scholarship, satire or parody.” § 3344.1(a)(2)(A)(ii)(II).
[x] Unless the work intends to and does create the impression that the digital replica is an authentic recording. § 3344(a)(2)(A)(ii)(III).
[xi] § 3344(a)(2)(A)(ii)(V).
[xii] § 3344(a)(2)(A)(ii)(IV).
[xiii] The use came before the amendment to § 3344.1, but Tupac’s estate was able to have the song taken down after sending a cease-and-desist letter.
[xiv] Section 3344(a)(2) pre-amendment provides “(2) For purposes of this subdivision, 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 an advertisement or commercial announcement for any of these works, shall not be considered a product, article of merchandise, good, or service if it is fictional or nonfictional entertainment, or a dramatic, literary, or musical work.”
[xv] § 3344.1(a)(2)(A)(i).
[xvi] See, e.g., Cambridge University Press v. Patton, 769 F.3d 1232, 1260 (11th Cir. 2014) (because fair use is an affirmative defense, its proponent bears the burden of proof in demonstrating that it applies); see also Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 553 (2023) (Gorsuch, N. concurring) (referring to fair use as an affirmative defense numerous times).
[xvii] For example, there are currently two bills proposed in Congress, the NO FAKES Act of 2024, S.4875, and the No AI FRAUD Act, H.R.6943, would both establish a statutory right for name, image and likeness in the context of AI.
[xviii] Section 50-f(2)(a)-(b). § 50-f(1)(c) defines a digital replica as “a newly created, original, computer-generated, electronic performance by an individual in a separate and newly created, original expressive sound recording or audiovisual work in which the individual did not actually perform, that is so realistic that a reasonable observer would believe it is a performance by the individual being portrayed and no other individual.”
[xix] For example, § 50-f(2)(d)(i) almost identically mirrors § 3344.1(a)(1)(B)(i), § 50-f(2)(d)(iv) is similar to § 3344.1(a)(1)(B)(ii), and § 50-f(2)(d)(iii) provides the same exception as § 3344.1(j).
[xx] See, e.g., Darden v. OneUnited Bank, 185 A.D.3d 1004, 1006 (2020).
