What Is Misappropriation of Likeness in California?

Misappropriation of likeness in California is the unauthorized commercial use of another person’s name, voice, signature, photograph, or likeness. Civil Code Section 3344 gives the person whose identity was used the right to sue for the greater of $750 or actual damages, plus any profits the user earned, attorney’s fees, and a court order stopping further use.¹ California also recognizes a broader common law claim that reaches beyond the statute, and recent legislation has extended these protections to AI-generated digital replicas of both living performers and deceased personalities.

What You Have to Prove

A Section 3344 claim has four elements. The defendant knowingly used your name, voice, signature, photograph, or likeness; the use was on products, merchandise, or in advertising; you did not give consent; and you suffered injury.¹

“Knowingly” does real work in the statute. Section 3344 is not strict liability. The defendant has to have been aware they were using your identity. In the employment context, if a worker’s photo appears incidentally in the employer’s advertising, the statute presumes the employer did not knowingly use the likeness, and the employee has to rebut that presumption.¹

“Likeness” under the statute covers photographs, video, and live television where you are “readily identifiable” to a viewer with the naked eye. If you appear only as part of a definable group, such as a crowd at a sporting event or on a street, that is not enough. You have to be singled out as an individual.¹

California also recognizes a common law right of publicity that reaches farther than the statute. In White v. Samsung Electronics America, Inc., the Ninth Circuit dismissed Vanna White’s Section 3344 claim because a game-show robot was not her “likeness,” but allowed her common law claim to proceed on the theory that Samsung had appropriated her identity without using her actual image.² If your case falls outside the statutory definition of likeness, the common law claim may still be available.

Uses That Are Not Covered

Not every use of your image gives rise to a claim. Section 3344(d) exempts uses connected to news, public affairs, sports broadcasts, and political campaigns. A news report or sports highlight showing your face does not need your consent.¹

Newspapers, magazines, television stations, radio networks, and other advertising media are also shielded under Section 3344(f). They face liability only if they had actual knowledge that an advertisement they ran contained an unauthorized use of someone’s identity.¹

For deceased personalities, Section 3344.1 goes further. Books, newspapers, musical compositions, original works of art, and works of fiction or nonfiction entertainment are generally not treated as commercial products, so long as they are not so directly tied to selling something that they function as advertising.³

What You Can Recover

The statute is written to make unauthorized use expensive. You can recover the greater of $750 or your actual damages, plus any profits the defendant earned from the use that are not already reflected in those damages. To reach the profits, you only need to show the defendant’s gross revenue from the unauthorized use. The defendant then has the burden of proving deductible expenses.¹

Punitive damages are available when the conduct is particularly egregious. The statute does not set a formula, and courts weigh the defendant’s resources and how reprehensible the behavior was.¹

Section 3344 also shifts attorney’s fees and costs to the prevailing party. That works in both directions. A successful plaintiff recovers legal costs, but a defendant who wins can seek fees from the plaintiff. Weigh the strength of your evidence before filing.¹

Beyond money, you can ask the court for an injunction or a temporary restraining order to stop the publication or distribution. Once served with the order, the defendant has two business days to comply.¹

AI Deepfakes and Digital Replicas

California enacted two laws in 2024 aimed squarely at AI-generated likenesses.

Living Performers (AB 2602)

AB 2602, effective January 1, 2025, added Section 927 to the Labor Code. A contract provision letting a studio or other party use a digital replica in place of a performer’s actual work is unenforceable if all three of these are true: the provision allows the replica to replace work the performer would otherwise have done in person; the contract does not describe how the replica will be used with reasonable specificity; and the performer was not represented by an attorney who negotiated the replica terms or by a union whose collective bargaining agreement addresses digital replicas.⁴

A “digital replica” is a computer-generated, highly realistic electronic representation readily identifiable as a specific person’s voice or visual likeness, embedded in a recording, image, or audiovisual work where the person did not actually perform or where the performance was materially altered. Standard post-production work such as remixing, mastering, or digital remastering does not count.⁴

Deceased Personalities (AB 1836)

AB 1836 amended Section 3344.1. Producing, distributing, or making available a digital replica of a deceased person’s voice or likeness in an audiovisual work or sound recording without consent from the rights holder now carries damages of the greater of $10,000 or actual damages. That floor sits well above the $750 minimum for living individuals under Section 3344.⁵

The statute lists categories of use that do not require consent:

Broadcasts or accounts connected to news, public affairs, or sports.
Uses for comment, criticism, scholarship, satire, or parody.
Documentary or biographical works representing the person as themselves, including some fictionalization, unless the use falsely suggests the work is an authentic recording the person actually participated in.
Fleeting or incidental appearances that are not central to the work.
Advertising and promotional material for any of the above.

⁵

Defenses You May Face

Transformative Use

The California Supreme Court’s decision in Comedy III Productions, Inc. v. Gary Saderup, Inc. set out the balancing test that dominates right-of-publicity litigation. A defendant avoids liability by showing the work adds significant creative elements so that it becomes “something more than a mere celebrity likeness or imitation.” The core question is whether the likeness is raw material the defendant used to synthesize something original, or whether the likeness itself is the sum and substance of the work.⁶

Incidental Use in Employment

Section 3344(c) creates a rebuttable presumption that an employer did not knowingly use an employee’s likeness if the photograph or likeness was only incidental and not essential to the publication’s purpose. You can still overcome the presumption with evidence, but it is a real hurdle.¹

Rights That Survive Death

California is one of the few states where likeness rights outlast the person. Section 3344.1 protects a deceased personality’s name, voice, signature, photograph, and likeness for 70 years after death, so long as the rights are properly registered.³

These are property rights. They can be transferred by contract, trust, or will, and a general residuary clause is enough to pass them to a beneficiary if the estate plan does not mention them specifically. Any contract the person signed during their lifetime assigning the use of their identity remains valid after death, whether it was signed before or after the statute took effect in 1985.³

To register a claim as a successor-in-interest, file a form with the California Secretary of State listing the deceased person’s name, date of death, your relationship or basis for the claim, and your percentage interest. The filing fee is $10, and the form must be signed under penalty of perjury.⁷

How Long You Have to Sue

Both statutory and common law right-of-publicity claims carry a two-year statute of limitations. The clock starts when the unauthorized use first occurs or when you discover it.

For online content, California’s single publication rule can shorten your window further. Civil Code Section 3425.3 provides that a single publication gives rise to only one cause of action, no matter how many people see it over time.⁸ In Yeager v. Bowlin, a federal court applied the rule to a commercial website, holding that merchandise listed since 2000 triggered the limitations period at the first posting rather than restarting with each sale.

If someone posts your image on a commercial site, the two-year period likely runs from that first posting. Waiting years to sue, even if the image is still up, puts the case at risk of being dismissed as time-barred.

1
California Legislative Information. California Code CIV 3344
2
Justia. White v Samsung Electronics America, Inc, 971 F2d 1395
3
California Legislative Information. California Civil Code 3344.1
4
California Legislative Information. AB 2602
5
California Legislative Information. AB 1836
6
Stanford Law. Comedy III Productions, Inc v Gary Saderup, Inc, 25 Cal 4th 387
7
Secretary of State – State of California. Registration of Claim as Successor-in-Interest (Civil Code Section 3344.1)
8
California Legislative Information. California Code CIV 3425.3