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There is a photograph on a lot of eyewear websites that nobody has ever thought of as a legal object. It is the one taken inside the shop: the dispensing optician at the slit lamp, a staff member holding a tray of frames, two people behind the counter who happen to be looking at the camera. It gets used on the about page, then on a landing page, then in a paid social creative, then in a Google Business profile, and at no point does anyone send a release form to the person in it, because the person in it works there.
On 30 September 2026 the Governor of California signed a bill that deletes the single sentence of state law that made that casual. It was signed on the same day as two other bills this blog has already written about, and the coverage all went to the other limb of it — the artificial intelligence limb, which is genuinely important and which we come to below. The sentence that got deleted is not about artificial intelligence at all. It is about your own employee, in your own advert, in a photograph taken on a Tuesday.
What was signed
SB 1111 (Senator Angelique Ashby), “Digital replicas”, approved by the Governor on 30 September 2026 and chaptered the same day as Chapter 862, Statutes of 2026. It does two things in two different codes:
- it amends section 3344 of the Civil Code — California’s right-of-publicity statute, the one that governs using a person’s name, voice, signature, photograph or likeness in advertising; and
- it adds Chapter 9, commencing with section 540, to Title 13 of Part 1 of the Penal Code, which provides that false impersonation for the purposes of the existing impersonation offences — sections 528.5, 529 and 530 — includes the use of a digital replica with intent to impersonate.
The bill carries no urgency clause. That matters, because the other digital-likeness bill signed on 30 September, SB 1000, was an urgency statute and took effect immediately. SB 1111 is an ordinary statute enacted in the 2026 session, which on the ordinary rule puts it in force on 1 January 2027. We did not read the chaptered bill’s final section, so treat that date as the default rule applying to a non-urgency statute rather than as a provision we have quoted. You have, on that reading, about three months.
The limb everybody wrote about
Section 3344 has always attached liability to the unauthorised use of a person’s “name, voice, signature, photograph, or likeness” in advertising. SB 1111 clarifies that, for the purposes of that cause of action, a voice or likeness includes a digital replica — described in the committee analysis as a computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual, reaching both the case where the individual did not perform or appear at all and the case where they did but the fundamental character of the performance or appearance was materially altered.
Read that against what this blog said three weeks ago about the three kinds of face in an eyewear funnel. The synthetic face — a person who does not exist — attracts a disclosure duty. The real face attracts a licence. The warning in that article was that if you generate new poses or new frames onto a real, recognisable person, you leave synthetic-performer territory and enter right-of-publicity territory. SB 1111 is the statute that now says so expressly, in the code section that carries the remedies.
And the remedies are the point. Compare the three Californian instruments signed or operative this autumn:
- SB 1000, amending the AI Transparency Act, carries a $5,000 civil penalty collected by the Attorney General, a city attorney or a county counsel. There is no private right of action, and the duties fall on the companies that make the image generators, not on you.
- SB 1050 imposes a disclosure duty on synthetic performers in video advertising.
- Section 3344, as amended by SB 1111, is a private cause of action belonging to the person whose likeness it is, and it has a price list attached to it.
That is the structural change. The AI-disclosure statutes regulate what you must say. Section 3344 regulates whether you had permission, and it lets the person who did not give it sue you directly.
The limb nobody wrote about
Until this bill takes effect, section 3344 contains a subdivision (c) that reads, in full:
Where a photograph or likeness of an employee of the person using the photograph or likeness appearing in the advertisement or other publication prepared by or in behalf of the user is only incidental, and not essential, to the purpose of the publication in which it appears, there shall arise a rebuttable presumption affecting the burden of producing evidence that the failure to obtain the consent of the employee was not a knowing use of the employee’s photograph or likeness.
SB 1111 removes that presumption.
Take the sentence apart, because almost every summary of this bill gets it the wrong way round. Liability under section 3344 requires that the defendant knowingly used the likeness without consent. Subdivision (c) said that where the employee’s appearance was incidental rather than essential, there was a rebuttable presumption, affecting the burden of producing evidence, that the failure to get consent was not a knowing use. A presumption that the failure to obtain consent was not knowing is a presumption that helps the person who used the photograph — the employer, the advertiser, the store. It was never a protection for the employee. It was a protection from the employee.
We flag that because at least one widely-indexed bill summary describes SB 1111 as removing “presumptions protecting employees whose images appear in advertisements.” On the text of the subdivision that is backwards, and the direction matters enormously to what you do next. The statute’s own words settle it.
Why “incidental, and not essential” is the whole story
Here is the part worth slowing down for. The presumption never covered the case you would worry about. If you put a staff member in a lifestyle shot as the model — her face, her frames, the hero image of the collection — her appearance is essential to the purpose of the publication, subdivision (c) never applied, and you always needed consent in the ordinary way.
What subdivision (c) covered was the opposite case: the photograph where the employee is incidental. The optician in the background. The person at the till in the corner of the shot. The three faces in the shop photograph you used as a banner. Those are exactly the images nobody audits, nobody gets a release for, and nobody remembers taking.
So the deletion lands with precision on the photographs you were not thinking about, and leaves the ones you were thinking about where they already were. That is an unusual shape for a legislative change and it is the reason this one is easy to miss: the risk did not move to a new place, it moved to a place you had already decided was fine.
Be careful about how much the deletion does, though, because it is a procedural change rather than a new duty. Subdivision (c) affected the burden of producing evidence. Removing it does not make the incidental use unlawful, create a new offence, or relieve the claimant of proving that the use was knowing. It removes a procedural advantage the employer had at the start of the argument. The use still has to be knowing, still has to be without consent, and still has to be for one of the purposes in subdivision (a).
What is left standing, and what it costs
None of the following is new law. All of it is what section 3344 already said, and all of it is what the deleted presumption used to sit in front of.
The money. Subdivision (a)(1) makes the user liable for damages sustained, and in addition liable for the greater of $750 or actual damages, plus any profits from the unauthorised use attributable to the use and not already counted in the damages. The allocation of proof on profits is the uncomfortable half: the injured party need present proof only of the gross revenue attributable to the unauthorised use, and the defendant has to prove its deductible expenses. Punitive damages may also be awarded. And the prevailing party is entitled to attorney’s fees and costs, which is the provision that makes a small claim worth bringing.
The two-day takedown. Subdivision (a)(2) allows an injunction or temporary restraining order under section 527 of the Code of Civil Procedure, and where the court orders the respondent to remove, recall or cease publication or distribution, the respondent must complete it within two business days from the day the order is served unless the order says otherwise. For an online store that is an operational fact rather than a legal one. Two business days is enough time to pull a product page, a banner and an email template if somebody knows where they all are, and not enough time to find out who has the master asset library.
The shield that is not yours. Subdivision (f) excludes the owners and employees of a medium used for advertising — newspapers, magazines, broadcast, cable, billboards, transit ads — unless they knew about the unauthorised use. That protects the channel you bought, not the advertiser who supplied the creative.
The group rule, which survives. Subdivisions (b)(2) and (b)(3) say that where a photograph includes more than one identifiable person, a complainant must be represented as an individual rather than solely as a member of a definable group, and that a person is a member of a definable group if they appear solely as a result of being present when the photograph was taken and have not been singled out in any manner. The statutory examples are crowds: a crowd at a sporting event, a crowd in a street or public building, a theatre audience, a glee club, a baseball team. SB 1111 does not touch this.
It is tempting to read that as rescuing the shop photograph, and we are not going to tell you it does. This is our reading and not an established one: a crowd at a stadium and the four people who work in a practice are not obviously the same kind of thing, the examples in the subdivision are all large and anonymous, and a staff member looking at the camera behind a counter has a decent argument that she was singled out. Treat the group rule as a real provision that may or may not reach you, not as a reason to skip the work below.
The criminal limb, briefly and honestly
The new Penal Code chapter is aimed at impersonation fraud, not at advertising. It provides that where false impersonation of another is an element of an offence — the online impersonation and false personation provisions in sections 528.5, 529 and 530 — the use of a digital replica with intent to impersonate counts. An eyewear retailer’s realistic exposure under SB 1111 is the civil limb in section 3344. We mention the criminal limb because it is half the bill and because leaving it out would make the civil half look larger than it is.
This is not a new kind of rule. It is the same kind, pointing the other way
Four days ago this blog published a piece on a Californian statute signed on exactly the same day, which took a lawsuit away from private plaintiffs by amending the section that created the private right of action and leaving the underlying prohibitions untouched.
SB 1111 is the same mechanism in reverse. It does not create a duty. It does not set a date for a label or a disclosure. It adjusts what a private claimant has to establish and what counts as a protected likeness, inside a statute that already carried a private right of action, a statutory damages floor and a fee-shifting provision. One bill made a claim harder to bring; the other made a claim easier to win. They were signed within hours of each other.
So if you are keeping a list of the ways California has drawn lines this year — and the live posts on this blog now cover five of them — this is not a new line. It is the same question as SB 690 asked: who may sue you, and what do they have to prove. Both answers changed on 30 September, in opposite directions, and neither was about a label.
What to do before 1 January
Find out whose faces you are already using. This is the same exercise the AI-imagery piece recommended, run over a different set of files. Not the hired models — you have paperwork for those, or you know you do not. The shop photographs. The team page. The photo from the trade show. The phone picture somebody took at the launch evening. Produce a list of images with a recognisable human being in them and a name next to each face.
Then get a consent, not a presumption. A one-page release signed by each member of staff whose likeness appears in anything used for advertising or selling is the whole fix, and it has to be the employee’s own consent rather than a clause nobody read. Cover the images that exist now, the channels they appear in, and what happens when the person leaves — which is the case that actually generates claims, because the goodwill goes with them.
Decide what you are doing about leavers’ images now rather than later. If the dispensing optician in your banner resigns in March, you want to know today whether your release survives the employment and whether you are willing to reshoot. The answer is cheaper to arrive at before the resignation than after it.
Write down where the assets are. This is the two-business-day point. One document listing every surface a hero image appears on — theme assets, product pages, collection banners, email templates, paid social, marketplace listings, the Google profile — turns a court-ordered takedown into an afternoon. Without it, two business days is not realistic, and non-compliance with the order is a separate and much worse problem than the original claim.
Put the clause in the agency contract. If a freelancer or agency supplies the creative, the agreement should say who obtains releases, who holds them, and who pays if one is missing. Do it at renewal.
And if you also use generated imagery, treat the two limbs as one job. The audit that answers “is this person real?” and the audit that answers “did this person consent?” are the same pass over the same folder. Doing them separately is how one of them never gets done.
Do not overcorrect. A rendered frame on a white background has no person in it and is outside all of this. A stock image licensed from a stock library comes with the release already — check the licence covers advertising use, which is the one restriction stock libraries actually enforce. And an internal staff directory that nobody uses to sell anything is a weaker candidate for “advertising or selling” than a storefront banner is. Whether a “meet the team” page on a shop that sells glasses is a use “for purposes of advertising or selling, or soliciting purchases” is a question we cannot answer for you, and we are not going to pretend the statute does.
What we could not establish, and are not going to guess
- We did not read the chaptered text of SB 1111. The removal of subdivision (c) and the addition of digital replicas to the cause of action come from the Senate Public Safety Committee’s own analysis of SB 1111, which analyses the version of the bill dated 23 March 2026, corroborated by two independent bill-tracking databases. The bill was amended after that date before passing both houses. If the final text differs, this article is describing the March version of the subdivision (c) deletion. We have quoted subdivision (c) itself from the code as it stands, which is not in doubt.
- We did not read an effective-date or urgency provision. One database states the bill contains no urgency clause, which with the ordinary rule for a 2026 statute gives 1 January 2027. We have not quoted a commencement provision.
- We have not established how section 3344 applies to a store outside California. It is a California statute and the general pattern for state consumer and publicity statutes is that they reach conduct directed at the state’s residents, but we are not going to turn a general pattern into advice about your jurisdiction.
- We have not established whether a product page or a team page is “advertising or selling” for the purposes of subdivision (a). The same ambiguity sits in the New York synthetic-performer statute and no court has resolved either.
- We have not established that the definable-group rule in subdivision (b) reaches a small staff. Flagged above as our reading.
The step with nobody’s face in it
It is worth noticing, again, where this year’s rules keep landing. The synthetic face in your advert needs a disclosure. The hired face in your lookbook needs a licence. The customer’s face in your virtual try-on collects biometric identifiers and needs consent and a retention schedule. And from January, your own staff member’s face in your own banner needs a signature, because the presumption that used to cover its accidental appearance is gone.
Every one of those attaches to the image layer of an eyewear store — the part that gets a customer interested. The step that turns interest into an order has no face in it at all: a prescription, a pupillary distance, a lens choice, an index, a coating. Nothing to disclose, nobody to get a release from, no metadata field, no takedown obligation. It is simultaneously the least regulated surface in the shop and the one with the largest effect on the size of the basket.
California is having a year on the image layer. It is also, separately, in court over what you may print on the box. Neither of those is a reason to spend the quarter re-auditing photographs instead of fixing the step that makes the money — but one signature per staff member and one asset inventory is a small enough bill to pay before January.
Frequently asked questions
Does this apply to me if my store is not in California?
Section 3344 is a California statute and we have not established its reach over an out-of-state seller. The general pattern for statutes of this kind is that they reach advertising directed at the state’s residents, which for a store shipping nationally is a reason to assume exposure rather than to assume immunity. Take advice on your own position.
My employee is in a photo but she is happy about it. Do I need anything in writing?
Section 3344 requires the person’s prior consent. It does not say the consent has to be written, and we are not telling you it does. But the presumption that used to help you on the question of whether the use was knowing is being deleted, and the evidence that she agreed is the thing you will wish you had. A signature costs nothing and settles it.
Does employment itself count as consent?
Nothing in the subdivision we have quoted says so, and the existence of a special presumption for employees rather suggests the opposite — the legislature wrote a rule about employees precisely because being an employee was not consent. With that presumption gone, there is less reason than before to assume employment carries permission with it.
What about a photo taken before 1 January 2027 that is still on my site?
The use is what the statute attaches to, not the shutter click. An image that stays up and keeps being used for advertising after the amendment takes effect is a use after the amendment takes effect. That is our reading of how the statute is structured rather than a point the bill resolves, and it is the reason the audit is worth doing before January rather than after.
Is $750 really the exposure?
$750 is the floor, not the exposure. Subdivision (a)(1) gives the greater of $750 or actual damages, plus attributable profits where the claimant need only prove gross revenue, plus the possibility of punitive damages, plus attorney’s fees and costs to the prevailing party. The fee-shifting provision is what changes the arithmetic of a small claim.
Does this have anything to do with AI-generated models?
Half of it does. The digital-replica limb brings a computer-generated likeness of a real, identifiable person inside section 3344. A generated face of a person who does not exist is a different problem, governed by disclosure rules rather than consent rules, and we cover it in the piece on synthetic models and disclosure. The employee-presumption limb has nothing to do with AI at all, which is why it went unreported.
Is this the same as the right-of-publicity rules for deceased personalities?
No. Those sit in a different section of the Civil Code and SB 1111, as described by the sources we read, amends section 3344 and adds a Penal Code chapter. We did not examine the deceased-personality provisions and are not describing them.
Do I need to do anything to my virtual try-on because of this?
Not because of this. Try-on exposure runs through biometric privacy statutes and the wiretapping claims California narrowed on the same day SB 1111 was signed. Different regimes, different faces: the try-on is the customer’s face, and this bill is about everybody else’s.
This article is general information about regulatory developments, not legal advice. It describes a Californian statute whose chaptered text we have not read, on the basis of the legislature’s own committee analysis of an earlier version and of the code as it currently stands. How any of it applies depends on your imagery, your channels and where your customers are; take advice on your own position before acting.
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Sources: California Civil Code section 3344, full text as currently in force, currency date 1 January 2026 — subdivision (c) quoted verbatim, together with the remedies in (a)(1), the removal-and-recall provision and two-business-day period in (a)(2), the readily-identifiable and definable-group provisions in (b)(1) to (b)(3), the news and public-affairs exclusion in (d), the commercial-medium provision in (e), the advertising-medium exclusion in (f) and the cumulative-remedies provision in (g) · SB 1111 (Ashby), “Digital replicas” — Senate Committee on Public Safety analysis of the bill as it stood on 23 March 2026, published on the Committee’s own site, for the removal of the subdivision (c) presumption, the inclusion of a digital replica within voice or likeness, and the Penal Code false-impersonation provision reaching sections 528.5, 529 and 530 · enactment, chaptering and code sections affected — approved by the Governor and chaptered 30 September 2026, Chapter 862, Statutes of 2026, amending Civil Code section 3344 and adding Chapter 9 commencing with section 540 to Title 13 of Part 1 of the Penal Code — taken from two independent bill-tracking databases whose own page headings carry the number SB 1111, one of which also records that the bill contains no urgency clause · the definition of a digital replica, corroborated independently in law-firm commentary on the 2026 Californian session published 14 September 2026 and updated 29 September 2026 · SB 1000 (Becker), signed 30 September 2026 as an urgency statute, and the $5,000 penalty enforced by the Attorney General, a city attorney or a county counsel with no private right of action, as previously reported on this blog · SB 1050 and the Californian synthetic-performer disclosure rules, as previously reported on this blog. The chaptered text of SB 1111 was not read; one widely-indexed summary describes the deleted presumption as protecting employees, which the text of subdivision (c) contradicts.
