# Right of Publicity and AI

Right of publicity law governs the use of a person's name, image, or likeness, and AI technologies that create digital replicas have raised new legal questions about consent, control, and compensation.

Right of publicity law protects individuals from unauthorized commercial use of their name, image, likeness, voice, or other identifiable aspects of their persona. The rise of [generative-ai](https://www.wikiprompt.org/wiki/generative-ai) systems capable of producing realistic digital replicas has created novel legal challenges, as these technologies can mimic a person's appearance, voice, and mannerisms with increasing fidelity. This intersection has prompted legislative and judicial responses worldwide, balancing free expression, technological innovation, and personal autonomy.

The legal doctrine of right of publicity emerged in the United States during the mid-20th century, building on privacy law concepts. It typically allows individuals to control the commercial exploitation of their identity and to sue for unauthorized use. While the right is recognized in most U.S. states, its scope varies, with some states providing statutory protections and others relying on common law. Internationally, similar protections exist under personality rights or moral rights frameworks, though the specifics differ across jurisdictions.

## Historical Development of Right of Publicity

The concept traces its roots to the 1890s, when Samuel Warren and Louis Brandeis argued for a right to privacy in a seminal Harvard Law Review article. The term "right of publicity" was coined by Judge Jerome Frank in the 1953 case Haelan Laboratories v. Topps Chewing Gum, which involved baseball cards. The court recognized that individuals have a property interest in their public persona, distinct from privacy rights.

Over subsequent decades, courts expanded the doctrine. The 1977 U.S. Supreme Court decision in Zacchini v. Scripps-Howard Broadcasting Co. affirmed that a performer's entire act could be protected, even when news coverage was involved. By the 1980s, most states had adopted some form of right of publicity, with California and New York having the most developed statutes. The 1988 case Midler v. Ford Motor Co. established that imitating a singer's distinctive voice could violate the right, setting a precedent for later AI-related disputes.

## AI-Generated Digital Replicas

[Artificial-intelligence](https://www.wikiprompt.org/wiki/artificial-intelligence) systems, particularly those using [deep-learning](https://www.wikiprompt.org/wiki/deep-learning) techniques, can now generate photorealistic images, audio, and video of real people. These digital replicas are often created by training [neural-network](https://www.wikiprompt.org/wiki/neural-network) models on large datasets of a person's photographs, recordings, or performances. The resulting outputs can be nearly indistinguishable from authentic media, raising concerns about identity theft, fraud, and reputational harm.

In the entertainment industry, digital replicas have been used to recreate deceased actors or to de-age living performers. For example, a 2016 film featured a digital version of actor Peter Cushing, who had died in 1994, with the consent of his estate. More recently, some artists have licensed their likenesses for virtual performances, while others have objected to unauthorized use. The technology also enables "deepfakes," which can place individuals in fabricated scenarios, often without their knowledge or consent.

## Legal Challenges and Court Cases

Several notable cases have tested the application of right of publicity to AI-generated content. In 2020, a California court allowed a lawsuit to proceed against a company that used a deceased rapper's voice in a music track, holding that the voice was protected under the state's post-mortem publicity statute. In 2023, a federal court in Illinois addressed whether AI-generated images of a model violated her right of publicity, finding that the claim could proceed because the images were commercially used.

A landmark case involved the use of an actor's likeness in a video game without authorization. The court ruled that the digital replica was sufficiently similar to the actor's real appearance to constitute a violation, even though the game character had a different name. This decision reinforced that likeness protection extends to AI-created representations, not just direct photographs or recordings.

However, courts have also recognized First Amendment and free expression defenses. Parodies, news reporting, and artistic works that use a person's likeness may be protected if they add significant creative content. The balance between right of publicity and free speech remains contentious, with some scholars arguing that AI-generated content should receive broader protection as transformative expression.

## Legislative Responses

In response to these challenges, several U.S. states have enacted or updated laws addressing digital replicas. Tennessee's Ensuring Likeness Voice and Image Security Act, passed in 2024, specifically targets AI-generated replicas of musicians, requiring consent for commercial use. California amended its right of publicity statute in 2024 to cover "digital replicas" and to extend protections to deceased individuals for 70 years after death.

New York's 2020 law, which previously excluded certain expressive works, was updated in 2024 to address AI-generated content, though it still contains exemptions for news and commentary. Other states, including Illinois, Texas, and Washington, have considered similar measures. At the federal level, the No Fakes Act, introduced in 2023, proposes a national right of publicity that would apply to digital replicas, but it has not yet passed.

Internationally, the European Union's General Data Protection Regulation provides some protection through data privacy rights, as a person's biometric data is considered personal information. The EU's proposed AI Act includes transparency requirements for AI-generated content but does not create a specific right of publicity. In China, the Civil Code recognizes personality rights, and courts have applied them to deepfake cases, ordering removal and damages.

## Industry Practices and Licensing

Entertainment companies and technology firms have developed practices to address right of publicity concerns. Many now include clauses in contracts that explicitly grant rights to create digital replicas, often with additional compensation. For example, actors in major film franchises have negotiated separate fees for the use of their likeness in AI-generated scenes. Some unions, such as SAG-AFTRA, have advocated for stronger protections and have included AI-related provisions in collective bargaining agreements.

Technology platforms that host AI-generated content have implemented policies to remove unauthorized replicas. [OpenAI](https://www.wikiprompt.org/wiki/openai), [Anthropic](https://www.wikiprompt.org/wiki/anthropic), and other [generative-ai](https://www.wikiprompt.org/wiki/generative-ai) developers have added content moderation systems that can detect and block deepfakes of real people. However, these measures are not always effective, and legal recourse remains necessary for many individuals.

## Ethical and Social Implications

The use of AI to create digital replicas raises ethical questions about consent, dignity, and truth. Unauthorized replicas can damage reputations, spread misinformation, or cause emotional distress. The deceased cannot consent, but their estates may control their likeness, leading to disputes over whether posthumous use is appropriate. Some argue that AI replicas could preserve cultural heritage, while others see them as a form of exploitation.

Scholars like [melanie-mitchell](https://www.wikiprompt.org/wiki/melanie-mitchell) have noted that AI systems lack understanding of social context, making it difficult to assess the harm of a replica. The technology also amplifies existing inequalities, as public figures are more likely to be targeted, but private individuals can also be affected. Legal frameworks must adapt to these realities, balancing innovation with individual rights.

## Future Directions

As AI capabilities continue to advance, right of publicity law will likely evolve. Courts may need to define the boundaries of "likeness" in the context of synthetic media, considering factors such as similarity, intent, and commercial use. Legislators may adopt uniform standards to reduce inconsistencies across states and countries. The development of technical tools, such as watermarking and provenance tracking, could help verify the authenticity of media and deter unauthorized use.

Some experts propose a federal right of publicity to provide consistent protection, while others caution against overly broad laws that could stifle creativity. The role of [machine-learning](https://www.wikiprompt.org/wiki/machine-learning) in generating replicas will also influence liability, as developers and users may be held responsible for outputs. International cooperation may be necessary to address cross-border issues, as AI-generated content can be created and distributed globally.

## Conclusion

The intersection of right of publicity and AI presents a complex legal landscape that is still being shaped. While existing doctrines provide a foundation, they were not designed for the capabilities of modern [artificial-intelligence](https://www.wikiprompt.org/wiki/artificial-intelligence) systems. Ongoing litigation, legislation, and industry practices will determine how individuals can protect their digital selves. The challenge lies in crafting rules that respect personal autonomy without unduly limiting technological progress or free expression.

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Source: https://www.wikiprompt.org/wiki/right-of-publicity-ai
License: CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0/)
Last updated: 2026-09-12T16:23:31.676393+00:00