The Modern East-West Divide: AI and Publicity Rights in New York and California
[Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.]
In spring 2024, the biggest entertainment story was the rap battle between Drake and Kendrick Lamar. But beyond the music, Drake’s use of an AI-generated version of the late Tupac Shakur in his song Taylor Made Freestyle raised major legal questions. The incident showed how artificial intelligence is testing old rules around music law and publicity rights. California and New York, home to the two biggest entertainment industries, are taking very different approaches to these issues, which could create a major divide in how the law develops.
California recently passed AB 1836, a law that expands publicity rights for deceased celebrities. It makes it illegal to use a digital replica of a celebrity’s likeness or voice without consent and increases penalties to at least $10,000 per use, compared to the previous $750 minimum. There are exceptions for documentaries, biographical works, public commentary, and brief appearances, but overall the law gives estates more power to sue when a celebrity’s image or voice is recreated with AI. If this law had existed earlier, Drake’s use of an AI Tupac might have been covered. But since his song wasn’t directly tied to selling a product, it’s unclear whether it would qualify as a violation. Courts will also need to decide who bears the burden of proving whether a use falls under an exception—the plaintiff or the defendant.
New York’s approach is far narrower and less punitive. Its law, Section 50-f, sets a $2,000 minimum penalty and only restricts AI replicas used in scripted audiovisual works that could mislead the public into thinking they were authorized by the celebrity’s estate. Unlike California, New York’s law wouldn’t have covered Drake’s use of Tupac, since the video wasn’t a live performance or a fictional portrayal. And because New York doesn’t recognize a common law right of publicity, artists there have fewer options to protect their likeness.
A recent lawsuit, Lehrman v. Lovo, shows how courts are beginning to deal with AI voice replication. Two voice actors claimed a company used AI versions of their voices without consent. The court found that digital voice replicas can qualify as likenesses under New York’s publicity laws, suggesting that legal protections may grow even without new legislation. Meanwhile, California lawmakers are considering Senate Bill 11, which would explicitly include digital replicas in its publicity law for both living and deceased individuals. If signed, it would give artists much clearer protections when their voices or images are copied with AI.
Overall, California’s legislature is moving quickly to adapt to new technology, while New York’s courts are taking the lead in filling legal gaps. As AI becomes more common in entertainment, these different approaches could shape how the industry handles digital impersonations for years to come.
For more information see Neville L. Johnson, Douglas L. Johnson and Hunter S. Litterio “The Modern East-WestDivide: AI and PublicityRights in New Yorkand California,” New York State Bar Association Journal, September 2025.