Expressive Work Right of Publicity Risk Checklist: A Practical Checklist

Summary. This checklist turns the case law on the right of publicity and the First Amendment into a use-by-use risk review for anyone who puts a real person into a film, series, documentary, book, podcast, song, game, artwork, or campaign, and for the people depicted and their lawyers. It starts with triage (who appears, how each use is classified, and which forum and test apply) and then works through the statutory exemptions, the competing First Amendment tests, newsworthiness, commercial speech, fictionalization and defamation, and the federal overlays of false endorsement, copyright preemption, and Section 230. Separate parts cover medium-specific red flags, digital replicas, disclaimers and marketing copy, the clearance file and insurance, and readiness for an anti-SLAPP motion or other early dismissal. A parallel part for the person depicted covers preservation, claim selection, fee exposure, limitations periods, and pre-release demands. Each item is phrased as an action with a short note and the authority behind it, and the checklist closes with a risk scoring table, an FAQ, and practical takeaways.

An art director wants to give a mobile game's point guard a real star's tattoos, hairline, and jersey number, and asks whether changing two letters of his name makes that safe. A showrunner wants the trailer to promise "the true story." A coffee brand's social team wants to congratulate a tennis champion by name the morning after her final. Each question has a fairly predictable answer, and the answer turns less on how creative the work is than on how the person is used in it and where the lawsuit would be filed.

How to use this checklist

Run one pass for each real person and each use of that person. Parts 1 to 3 are triage: they identify the people, classify each use, and fix the forum and the governing test. Parts 4 to 7 apply the defenses in the order a court usually reaches them. Part 8 lists red flags by medium, including digital replicas and AI. Part 9 covers the federal overlays and the disclaimers, Part 10 the clearance file and readiness for an early motion, and Part 11 runs the same exercise for the person depicted. The scoring table at the end converts your answers into a green, yellow, or red rating that a producer, publisher, or insurer can act on.

The short version. A real person used inside a film, book, documentary, song, painting, or game that tells a story about them, comments on them, or uses them as raw material for something new is protected almost everywhere. A real person used to sell something else (an ad, a product, a sponsor's post) is not, however artful the execution. The contested middle is a realistic likeness that is itself the product's main attraction, such as an athlete's avatar in a sports game or a literal portrait on a T-shirt, and there the outcome depends on which state's test applies. The right of publicity is a state-law right to control the commercial use of one's identity; the First Amendment limits it whenever the use is expression rather than commerce.

For the doctrine behind each item, read The Right of Publicity and the First Amendment: Transformative Use, Newsworthiness, and the Limits of Owning a Persona. For the same work told as a chronological clearance procedure, see Clearing Expressive Works Against Right of Publicity Claims: A Practical Guide. For memo outlines and motion templates that turn the answers below into written work product, see the Publicity and Free Speech Toolkit: Transformative Use Memos, Newsworthiness Analyses, and Anti-SLAPP Motions.

Part 1: Identify every real person and how they appear

• List every real person who is named, shown, heard, or evoked. Include people in archival clips, photographs on a set wall, crowd scenes, montages, lyrics, background audio, curated user content, and marketing copy. The person most often missed is the one who appears only in the trailer, the key art, or the app store screenshots.
• Record every identity cue used for each person. Name, nickname, photograph, footage, voice (real or imitated), signature, catchphrase, number, costume, vehicle, biography. Identity reaches well beyond a name and a face: a robot in a wig turning letters on a game-show set (White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992)), a catchphrase (Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983)), a race car's distinctive livery (Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974)), sound-alike voices (Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988); Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992)), and animatronic figures in an airport bar (Wendt v. Host International, Inc., 125 F.3d 806 (9th Cir. 1997)) all supported claims.
• Test recognizability with someone outside the project. Unnamed avatars that carried the players' positions, sizes, skin tones, and years were identifiable in Davis v. Electronic Arts Inc., 775 F.3d 1172 (9th Cir. 2015). New York's highest court held that a computer-generated image can be a "portrait" under the statute, but the claims in Lohan v. Take-Two Interactive Software, Inc., 31 N.Y.3d 111 (2018) and Gravano v. Take-Two Interactive Software, Inc., 31 N.Y.3d 988 (2018) failed because the avatars were not recognizable as the plaintiffs. Recognizability is a question of evidence; your own reference files and art direction notes will be exhibits.
• Treat a changed name as cosmetic. If the audience knows who it is, renaming accomplishes little. What moves a depiction toward protection is changing the look, the profession, the setting, and the story, as in Kirby v. Sega of America, Inc., 144 Cal. App. 4th 47 (2006) (a singer recast as a 25th-century space reporter) and Hamilton v. Speight, 827 F. App'x 238 (3d Cir. 2020) (a game soldier fighting fantastic creatures, not a wrestler wrestling).
• Mark each person as living or dead, and for the dead record the date and the domicile at death. Postmortem rights follow domicile at death: 70 years in California (Cal. Civ. Code § 3344.1), 40 years in New York for deaths on or after May 29, 2021 (N.Y. Civ. Rights Law § 50-f), 100 years in Indiana, 50 in Illinois, 10 or 75 in Washington, and in Tennessee 10 years and then for as long as the rights keep being used. Many states recognize none. Domicile can be contested and decisive, as Marilyn Monroe's successors learned in Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983 (9th Cir. 2012), and as Princess Diana's estate learned under English law in Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002).
• Classify each living person as a public figure, a limited-purpose public figure, or a private person. The classification sets the defamation fault standard under New York Times Co. v. Sullivan, 376 U.S. 254 (1964) and Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), and it changes how much a newsworthiness argument will protect private details.
• Flag minors. New York requires written consent from a parent or guardian (N.Y. Civ. Rights Law § 50), and in California a minor's entertainment contract approved by the court cannot later be disaffirmed (Cal. Fam. Code § 6751).
• Note every contract with the person. Life rights agreements, releases, NDAs, interview agreements, and any promise of approval, anonymity, or a sympathetic portrayal. The First Amendment does not excuse breaking a promise to a source, as Cohen v. Cowles Media Co., 501 U.S. 663 (1991) held.

Notes. Keep the inventory in a log with one row for each use of each person; Template 1 of the Publicity and Free Speech Toolkit is built for this. For releases, stock imagery, and escalation mechanics that this checklist does not repeat, use the Right of Publicity Clearance Checklist: A Practical Checklist.

Part 2: Classify every use before you analyze it

• Put each use in exactly one bucket. (1) In the work itself; (2) advertising for the work; (3) merchandise; (4) someone else's advertising, sponsorship, or brand content; (5) the person's name or face used as a brand, title franchise, or product name; (6) licensed footage, photographs, or recordings of the person. The doctrine sorts uses, not people, so the same person can be lawfully in the film and unlawfully on the mug.
• In the work itself: expect protection for stories, commentary, parody, biography, and art; continue to Parts 4 to 8 for anything realistic that the product depends on.
• Advertising for the work: confirm that the trailer, cover, poster, or store page shows what the work actually contains and does not imply that the person endorses or participated in it. Advertising incidental to a protected use is itself protected under Restatement (Third) of Unfair Competition § 47, Cal. Civ. Code § 3344.1(a)(2), and New York's incidental-use doctrine (Booth v. Curtis Publishing Co., 15 A.D.2d 343 (1st Dep't 1962); Namath v. Sports Illustrated, 48 A.D.2d 487 (1st Dep't 1975); Groden v. Random House, Inc., 61 F.3d 1045 (2d Cir. 1995)). A newspaper may sell posters of its own front pages (Montana v. San Jose Mercury News, Inc., 34 Cal. App. 4th 790 (1995)), but a magazine whose ads implied that Cher chose it for her confessions lost (Cher v. Forum International, Ltd., 692 F.2d 634 (9th Cir. 1982)).
• Merchandise: assume a license is needed for a realistic likeness on goods. Lithographs and T-shirts of a literal portrait lost in Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001); unauthorized pin-up posters of a model were a trade use in Brinkley v. Casablancas, 80 A.D.2d 428 (1st Dep't 1981); and whether oversized wrestler photos in "poster magazines" were news or trade was a jury question in Titan Sports, Inc. v. Comics World Corp., 870 F.2d 85 (2d Cir. 1989). The narrow exception is commemorative expressive goods, such as the books, film, and plaque about Rosa Parks sold at Target in Rosa & Raymond Parks Institute for Self Development v. Target Corp., 812 F.3d 824 (11th Cir. 2016).
• Someone else's advertising or brand content: treat it as commercial speech and get consent (Jordan v. Jewel Food Stores, Inc., 743 F.3d 509 (7th Cir. 2014); Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001); Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996)).
• Name or face as a brand: after Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023), a source-identifying use gets no Rogers protection on a federal false endorsement claim, as the Ninth Circuit confirmed in Punchbowl, Inc. v. AJ Press, LLC, 90 F.4th 1022 (9th Cir. 2024). Registering a mark that includes a living person's name also requires that person's written consent under 15 U.S.C. § 1052(c), which the Supreme Court upheld in Vidal v. Elster, 602 U.S. 286 (2024).
• Licensed footage, photographs, or recordings: clear the copyright separately, then note that a publicity claim aimed at an expressive work built from licensed footage is often preempted by 17 U.S.C. § 301 (Dryer v. National Football League, 814 F.3d 938 (8th Cir. 2016); Maloney v. T3Media, Inc., 853 F.3d 1004 (9th Cir. 2017); Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134 (9th Cir. 2006)), while a claim aimed at an ad or a product is not (Toney v. L'Oreal USA, Inc., 406 F.3d 905 (7th Cir. 2005); Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008)).

Notes. Most losses in this field come from buckets 3, 4, and 5. A clean film can generate an unprotected poster, a sponsor tie-in, an influencer kit, or a title that becomes a product line. Review those assets on their own schedule, not at the end.

Part 3: Fix the forum, the governing law, and the test

• List every plausible forum. The plaintiff's domicile, the states of major distribution, the defendant's home state, and for estates the decedent's domicile at death. A national release can usually be sued on wherever it is distributed, subject to personal jurisdiction; see Personal Jurisdiction Over Online and Foreign Defendants: From Zippo to Ford Motor.
• Identify the test each forum applies. Use this map:

• Clear the work under the least protective plausible test, not the friendliest one. A national game release must survive Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013) and Keller v. Electronic Arts Inc. (In re NCAA Student-Athlete Name & Likeness Licensing Litigation), 724 F.3d 1268 (9th Cir. 2013), not only Rogers.
• Check whether the anti-SLAPP motion will be available. California's statute applies in state court and, under United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999) and CoreCivic, Inc. v. Candide Group, LLC, 46 F.4th 1136 (9th Cir. 2022), in the Ninth Circuit, decided under Rule 12 or Rule 56 standards per Planned Parenthood Federation of America, Inc. v. Center for Medical Progress, 890 F.3d 828 (9th Cir. 2018). Federal courts in the Second, Fifth, Tenth, Eleventh, and D.C. Circuits will not hear state special motions (La Liberte v. Reid, 966 F.3d 79 (2d Cir. 2020); Klocke v. Watson, 936 F.3d 240 (5th Cir. 2019); Los Lobos Renewable Power, LLC v. AmeriCulture, Inc., 885 F.3d 659 (10th Cir. 2018); Carbone v. Cable News Network, Inc., 910 F.3d 1345 (11th Cir. 2018); Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328 (D.C. Cir. 2015)), while the First Circuit applied Maine's (Godin v. Schencks, 629 F.3d 79 (1st Cir. 2010)).
• Decide now whether you would remove a state-court case. Removal under 28 U.S.C. § 1441 must happen within 30 days under 28 U.S.C. § 1446, and in some circuits it forfeits the special motion.
• Calendar the limitations period from first publication. New York's is one year, and the single publication rule means later sales of the same work do not restart it (Nussenzweig v. diCorcia, 9 N.Y.3d 184 (2007); Electra v. 59 Murray Enterprises, Inc., 987 F.3d 233 (2d Cir. 2021)). California's is generally two years.

Notes. Choice of law in multistate publicity cases is unsettled, and courts often apply the law of the plaintiff's domicile for living persons (1 J. Thomas McCarthy & Roger E. Schechter, The Rights of Publicity and Privacy §§ 11:11 to 11:15 (2d ed.)). If the answer to "where will we be sued?" is "anywhere," the answer to "which test?" is "the worst one."

Part 4: Screen the statutory exemptions first

• California: check Cal. Civ. Code § 3344(d) and § 3344.1(a)(2). Section 3344(d) excludes uses "in connection with any news, public affairs, or sports broadcast or account, or any political campaign." For deceased personalities, § 3344.1(a)(2) excludes plays, books, magazines, newspapers, musical compositions, audiovisual works, radio and television programs, single and original works of fine art, works of political or newsworthy value, and advertisements for any of them. The California common-law claim has no textual exemption, so a defendant there must also win the constitutional argument.
• New York: ask whether the use is "advertising" or "trade" at all. The courts read N.Y. Civ. Rights Law §§ 50 and 51 narrowly. News is outside them (Arrington v. New York Times Co., 55 N.Y.2d 433 (1982); Messenger v. Gruner + Jahr Printing & Publishing, 94 N.Y.2d 436 (2000)), and so are fiction and satire (Costanza v. Seinfeld, 279 A.D.2d 255 (1st Dep't 2001), dismissing a claim over the George Costanza character), fine art (Foster v. Svenson, 128 A.D.3d 150 (1st Dep't 2015)), and song lyrics (Lohan v. Perez, 924 F. Supp. 2d 447 (E.D.N.Y. 2013)). The exception is a knowing, substantially fictional biography presented as fact (Spahn v. Julian Messner, Inc., 21 N.Y.2d 124 (1967)).
• Indiana, Illinois, and Washington: read the exemption list against the use. Ind. Code § 32-36-1-1(c) excludes material with "newsworthy value," which the Indiana Supreme Court applied to daily fantasy sports in Daniels v. FanDuel, Inc., 109 N.E.3d 390 (Ind. 2018) before the Seventh Circuit affirmed dismissal in Daniels v. FanDuel, Inc., 909 F.3d 876 (7th Cir. 2018). See also 765 ILCS 1075/35 and Wash. Rev. Code § 63.60.070, which exempt news, sports, political, literary, dramatic, musical, and audiovisual uses.
• Tennessee: apply Tenn. Code Ann. § 47-25-1107 as rewritten by the ELVIS Act (effective July 1, 2024). It treats news, public affairs, and sports accounts, commentary, criticism, scholarship, satire, parody, and fleeting or incidental uses as fair use to the extent the First Amendment protects them, and it now covers voice, real or simulated.
• Florida: confirm the use is not for a "commercial purpose" under Fla. Stat. § 540.08. The Florida Supreme Court read that phrase to exclude a film that does not directly promote a product or service (Tyne v. Time Warner Entertainment Co., 901 So. 2d 802 (Fla. 2005)).
• Common-law states: apply Restatement (Third) of Unfair Competition § 47. "Purposes of trade" excludes news reporting, commentary, entertainment, works of fiction or nonfiction, and advertising incidental to those uses.

Notes. A court that can decide a case on a statutory exemption usually will and never reaches the Constitution, so lead with the exemption in every memo and motion.

Part 5: Apply the forum's First Amendment test

Transformative use (California and the Third Circuit).

• Ask whether the person is raw material or the sum and substance of the work, and whether the work's market value comes mainly from the person's fame. Both questions come from Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001).
• Look for distortion, caricature, fantasy, or a new context. Half-worm villains in a comic won (Winter v. DC Comics, 30 Cal. 4th 881 (2003)), and so did a rapper's adoption of a former drug trafficker's name and persona (Ross v. Roberts, 222 Cal. App. 4th 677 (2013)).
• Red-flag any realistic depiction of the person doing what made them famous. That is the pattern of the losses in No Doubt v. Activision Publishing, Inc., 192 Cal. App. 4th 1018 (2011), Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013), Keller v. Electronic Arts Inc. (In re NCAA Student-Athlete Name & Likeness Licensing Litigation), 724 F.3d 1268 (9th Cir. 2013), and Davis v. Electronic Arts Inc., 775 F.3d 1172 (9th Cir. 2015). A player's ability to edit a realistic default avatar did not help in Hart.
• Assume the test will not be decided on the pleadings if the depiction is literal and the setting is the person's own; a greeting card using Paris Hilton's catchphrase in her own reality-show setting went to the factfinder in Hilton v. Hallmark Cards, 599 F.3d 894 (9th Cir. 2010).
• Do not import Warhol wholesale. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023) construes the fair use statute, not the First Amendment, but plaintiffs will cite its focus on purpose. The transformative concept itself came into publicity law from copyright's Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

Relatedness and Rogers (the Sixth Circuit, and federal claims nearly everywhere).

• Confirm that any title using the name relates to the work and does not explicitly mislead (Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989); Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2003); Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002), for a song title).
• If the name or face is the brand of the product, plan for an ordinary confusion analysis on the federal claim, not Rogers.

Predominant use (Missouri).

• Read your pitch decks, emails, interviews, and merchandising plans as a jury would. In Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003) and on retrial in Doe v. McFarlane, 207 S.W.3d 52 (Mo. Ct. App. 2006), the creator's own statements and hockey-themed merchandise turned a comic book villain's name into a $15 million verdict.

Balancing (the Eighth and Tenth Circuits, and the Sixth in ETW).

• Separate facts from bodies. Names, statistics, and history are protected (C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007); Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400 (2001)); a playable realistic body is not a fact.
• Separate parody from tribute. Mocking parody cards were protected in Cardtoons, L.C. v. Major League Baseball Players Association, 95 F.3d 959 (10th Cir. 1996), and a commemorative painting of a real sporting moment in ETW Corp. v. Jireh Publishing, Inc., 332 F.3d 915 (6th Cir. 2003).
• Never take the whole act. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977) is the one Supreme Court decision in this field, and it holds only that broadcasting a performer's entire act is not privileged.

Part 6: Test newsworthiness and the commercial speech line

• Decide whether the subject is a matter of public concern, which Snyder v. Phelps, 562 U.S. 443 (2011) describes as a matter of political, social, or other concern to the community or a subject of legitimate news interest. California courts have treated surf history (Dora v. Frontline Video, Inc., 15 Cal. App. 4th 536 (1993)) and baseball history (Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400 (2001)) as qualifying.
• Check the real relationship between the person and the content, and make sure the piece is not "an advertisement in disguise" (Finger v. Omni Publications International, Ltd., 77 N.Y.2d 138 (1990); Messenger v. Gruner + Jahr Printing & Publishing, 94 N.Y.2d 436 (2000)).
• Ask whether the identity is the subject or the bait. Twenty-year-old nude photographs published with a brief article about the model's murder fell outside the newsworthiness exception in Toffoloni v. LFP Publishing Group, LLC, 572 F.3d 1201 (11th Cir. 2009), because the article was incidental to the photographs rather than the other way around.
• For private details, test the nexus to the story. California asks whether the private facts bear a logical relationship to the newsworthy subject (Shulman v. Group W Productions, Inc., 18 Cal. 4th 200 (1998)) and protects truthful reports drawn from public court records (Gates v. Discovery Communications, Inc., 34 Cal. 4th 679 (2004)); see also Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222 (7th Cir. 1993). The Supreme Court protects truthful publication of lawfully obtained information of public significance (Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975); Florida Star v. B.J.F., 491 U.S. 524 (1989)).
• Remember that knowing falsity forfeits the privilege (Eastwood v. Superior Court, 149 Cal. App. 3d 409 (1983); Time, Inc. v. Hill, 385 U.S. 374 (1967)).
• Apply the commercial speech signals to every promotional asset. Speech that proposes a commercial transaction is commercial (Board of Trustees of the State University of New York v. Fox, 492 U.S. 469 (1989)), and the Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983) factors (advertising format, reference to a specific product, economic motive) decide the close cases.
• Treat brand tributes as advertising. A grocer's congratulatory page with no product and no price was commercial in Jordan v. Jewel Food Stores, Inc., 743 F.3d 509 (7th Cir. 2014).
• Check factual claims in the work's own marketing. The California Supreme Court held that statements on an album cover and in a promotional video about who sang the tracks were commercial speech in Serova v. Sony Music Entertainment, 13 Cal. 5th 859 (2022).
• Keep editorial and advertising separate. An editorial fashion feature was protected in Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180 (9th Cir. 2001), and so was an editorial feature placed beside a cigarette ad in Stewart v. Rolling Stone LLC, 181 Cal. App. 4th 664 (2010); a catalog that used surfers' photograph as window-dressing lost in Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001).
• Screen implied endorsements under federal advertising law. The FTC's Endorsement Guides, 16 C.F.R. Part 255, apply through 15 U.S.C. § 45, and the FTC's rule on consumer reviews and testimonials, 16 C.F.R. Part 465, effective October 21, 2024, prohibits fake celebrity testimonials.

Part 7: Review fictionalized and factual scenes scene by scene

• Identify the frame of the work: fiction, docudrama, documentary, biography, or parody. Fiction and dramatization about real people are protected (Guglielmi v. Spelling-Goldberg Productions, 25 Cal. 3d 860 (1979), Bird, C.J., concurring; Polydoros v. Twentieth Century Fox Film Corp., 67 Cal. App. 4th 318 (1997); Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994); Ruffin-Steinback v. dePasse, 267 F.3d 457 (6th Cir. 2001); Sarver v. Chartier, 813 F.3d 891 (9th Cir. 2016); de Havilland v. FX Networks, LLC, 21 Cal. App. 5th 845 (2018)).
• Tag every scene that depicts a real person as factual, dramatized, composite, or invented, with a source for each. This annotated script is the core defense exhibit.
• Run the defamation tests on every dramatized or invented scene. Would a reasonable viewer take it as fact (Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990))? Does invented dialogue materially change the meaning of what the person said or did (Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991))? Is it damaging? Can the plaintiff meet the fault standard? Actual malice means knowledge of falsity or serious doubts about truth (St. Amant v. Thompson, 390 U.S. 727 (1968)), and purposeful avoidance of the truth can supply it (Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989)).
• In New York, avoid marketing a substantially invented biography as fact. The same network lost a motion to dismiss and then won summary judgment on a clearly labeled dramatization (Porco v. Lifetime Entertainment Services, LLC, 147 A.D.3d 1253 (3d Dep't 2017); Porco v. Lifetime Entertainment Services, LLC, 2021 NY Slip Op 04072 (3d Dep't June 24, 2021)).
• Treat a composite character who is recognizable as one real person as that person.
• Change names and identifying details for private secondary figures (assistants, jurors, neighbors, victims' relatives), and keep the central public figure's real name.

Notes. Publicity claims rarely sink a docudrama; defamation and false light claims are decided one scene at a time. For the defamation rules, see Defamation, Business Disparagement, and Online Reviews.

Part 8: Check the red flags for your medium

• Scripted film and series: invented private scenes, composite characters, and secondary private figures; a sponsor's product placed in a real person's hands, which can imply a real endorsement.
• Documentaries and docuseries: archival licenses, appearance releases, a written fair use opinion for unlicensed clips under 17 U.S.C. § 107, private people caught on camera, and covertly recorded audio, which state recording laws may bar.
• Books, long-form journalism, and narrative podcasts: the cover and jacket copy are advertising for the work, and host-read sponsor ads must never place a guest's name or voice next to a sponsor without written consent.
• Music: lyrics that mention celebrities are not "advertising or trade" (Lohan v. Perez, 924 F. Supp. 2d 447 (E.D.N.Y. 2013)); titles must relate to the song (Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2003)); samples are mainly a copyright license question (Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134 (9th Cir. 2006)); imitated voices in commercials are actionable (Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988); Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992)).
• Video games: realistic athletes and performers in their own field need licenses, which the major sports titles get through the players' unions' group licensing programs. A character creator that ships with a preset named after a star is your use, not the user's. Rogers can defeat a federal claim about virtual places and depictions (E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095 (9th Cir. 2008); Brown v. Electronic Arts, Inc., 724 F.3d 1235 (9th Cir. 2013)) while the state claim proceeds under Hart and Keller. For launch mechanics, see the Game Launch Legal Checklist: A Practical Checklist.
• Visual art and prints: original works and limited editions that commemorate a real event are often protected (ETW Corp. v. Jireh Publishing, Inc., 332 F.3d 915 (6th Cir. 2003)); unlimited reproductions of a literal portrait on consumer goods are not.
• Brand social media: a congratulatory post is advertising (Jordan v. Jewel Food Stores, Inc., 743 F.3d 509 (7th Cir. 2014)), a wire-service photo needs its own copyright license, and the brand that writes the post is never protected by 47 U.S.C. § 230.
• Digital replicas, voice clones, and AI-generated performances: the ELVIS Act reaches voice and tools whose primary purpose is producing a person's likeness or voice without authorization; California's AB 1836 (signed in September 2024, effective January 1, 2025) adds digital replica rules for deceased personalities to § 3344.1, and AB 2602 adds Cal. Lab. Code § 927 to limit contract terms that permit replicas of performers; New York's § 50-f requires a conspicuous disclaimer for some unauthorized replicas of deceased performers in scripted works. Never use a replica in advertising without written consent, and label synthetic content in expressive work. See Name, Image, Likeness, and Digital Replicas: The ELVIS Act, the NO FAKES Act, and Deepfake Law.

Part 9: Run the federal overlays and fix the disclaimers

• Screen every use for false endorsement under 15 U.S.C. § 1125(a). The claim requires likely confusion about sponsorship or approval, and it brings injunctions and fees under 15 U.S.C. § 1116 and 15 U.S.C. § 1117. It also depends on how recognizable the person is. In Electra v. 59 Murray Enterprises, Inc., 987 F.3d 233 (2d Cir. 2021), models whose photographs were used in strip-club ads revived their § 51 claims, but the dismissal of their Lanham Act claims was affirmed, and the court treated each model's public prominence as the measure of the strength of her "mark." For the trademark side of expressive uses, see the Trademark Fair Use Analysis Checklist: A Practical Checklist.
• Clear the copyright in every photograph, clip, and recording separately. The photographer and the studio have claims that have nothing to do with the person depicted.
• Do not count on Section 230 for content you create. For platforms hosting others' content, state publicity claims are barred in the Ninth Circuit (Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007)) but not in the Third (Hepp v. Facebook, 14 F.4th 204 (3d Cir. 2021)).
• Use disclaimers that change what the audience understands: a dramatization statement at the start of each episode, "inspired by true events" instead of "the true story," and a parody label on satire and synthetic video. Labeling helped in Hicks v. Casablanca Records, 464 F. Supp. 426 (S.D.N.Y. 1978) and Porco, and the logic of Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) protects what no reasonable viewer takes as fact.
• Drop disclaimers that do not work: "any resemblance is coincidental" on a work that obviously portrays a real person, a disclaimer attached to a specific false accusation, and "this is not an endorsement" on an advertisement. A "not affiliated" line helps only on a confusion-based claim.

Part 10: Build the file and get ready for the first motion

• Decide between life rights, releases, and nothing. The law does not require a life rights deal (de Havilland v. FX Networks, LLC, 21 Cal. App. 5th 845 (2018); Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994)); buy one only for access, a release, practical exclusivity, or marketing value. Release forms are in the Right of Publicity Toolkit: Releases, NIL Agreements, and Takedown Demands.
• Assemble the clearance file: the inventory, a written determination for each use, the annotated script and source binder, releases and licenses, the marketing review, the disclaimer text, correspondence with subjects, and a description of any AI-generated material.
• Apply for errors and omissions insurance with that file, and read the exclusions for merchandising and advertising. Insurers' clearance procedures typically accept either a release or counsel's written determination that none is needed. Brands sued over their own posts should check the "personal and advertising injury" coverage in their general liability policy; see Business Insurance and Coverage Disputes: CGL, E&O, Cyber, and D&O.
• Issue a litigation hold as soon as a claim is reasonably anticipated, covering drafts, research, marketing assets, and messages; lost electronic evidence invites sanctions under Fed. R. Civ. P. 37.
• Stage the anti-SLAPP motion in California. It is due within 60 days of service (Cal. Civ. Proc. Code § 425.16(f)), it stays discovery (§ 425.16(g)), a prevailing defendant recovers fees (§ 425.16(c)(1)), and either side may appeal at once (§ 425.16(i)), which stays the trial (Varian Medical Systems, Inc. v. Delfino, 35 Cal. 4th 180 (2005)). Section 425.17(d)(2) keeps the motion available for creative works even when the defendant is a business. Do not assume the first prong is automatic for a private person depicted in fiction: the denial of the motion was affirmed in Dyer v. Childress, 147 Cal. App. 4th 1273 (2007).
• Prepare the declarations now: the creators on theme and research, marketing on how the person was and was not used, and a custodian lodging the work itself.
• Where no special motion exists, plan a Rule 12(b)(6) motion built on the work itself, which courts may consider when the claim depends on its contents (Knievel v. ESPN, 393 F.3d 1068 (9th Cir. 2005); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007); Fed. R. Evid. 201).
• Be ready to oppose a prior restraint on a day's notice under Fed. R. Civ. P. 65 or its state equivalent.
• Think twice before suing first for a declaratory judgment under 28 U.S.C. § 2201: it picks the forum but gives up the defendant's special motion.

Part 11: For the person depicted, estates, and their counsel

• Preserve the evidence today: screenshots with URLs and capture dates, video captures, app store listings, promo codes, and a written demand that the other side preserve sales and redemption data. Plan authentication under Fed. R. Evid. 901; see Authenticating Website Evidence: A Practical Checklist.
• Match the claim to the harm. Publicity fits an ad, a product, or a realistic avatar that sells your likeness; defamation or false light fits a false and damaging scene; copyright fits your own photographs; contract fits a broken promise.
• Count the fee risk before filing. California's § 3344(a) awards fees to the prevailing party, and Sega recovered roughly $608,000 from the plaintiff in Kirby; a lost anti-SLAPP motion adds the defendant's fees.
• Calendar the limitations period from first publication, one year in New York.
• For estates, confirm domicile at death and registration. In California and New York, a successor cannot recover for uses that occur before it registers its claim with the Secretary of State, so register before you send the first demand.
• Choose the forum deliberately. A federal court in a circuit that will not hear state special motions, with a Lanham Act claim supplying jurisdiction under 28 U.S.C. § 1338 and 28 U.S.C. § 1367, can be worth a great deal.
• Send a specific pre-release letter. Identify the scene or asset, the facts that show it is false or unlicensed, and the change you want; a documented notice also builds the actual malice record. See Drafting a Demand Letter: A Practical Checklist.
• Use platform reporting for impersonations and fake endorsements, and if the poster is anonymous, see the Anonymous Speaker Unmasking Checklist: A Practical Checklist.
• Build damages from licensing comparables: what a license or sponsored post would have cost, proved by documents and expert testimony under Fed. R. Evid. 702 (Restatement (Third) of Unfair Competition § 49).

Risk scoring table

Any red in the Use row means license, redesign, or cut. Two or more reds elsewhere mean escalation to senior counsel and the insurer before release.

Frequently asked questions

Do I need permission to put a real person in a film, book, or podcast? Generally no, if the person is a subject of the story rather than a selling tool. Permission becomes necessary for advertising, merchandise, and realistic depictions that are the product's main attraction.

Is a lookalike or soundalike a safe substitute? Not in advertising, where imitations were actionable in Midler, Waits, and White. In an expressive work it depends on how much the depiction transforms the person.

Does every creative defendant get an anti-SLAPP motion? No. Many federal circuits will not hear one, and a private person depicted in fiction may defeat the first prong, as in Dyer.

What should the person depicted do first? Preserve the evidence, identify the claim that fits the harm, and send a specific, documented letter before release.

Practical takeaways

• Classify the use before analyzing it; ads, merchandise, and brand uses cause most losses.
• Analyze under the least protective plausible forum, and know whether an early motion will be available there.
• Realism in the person's own field is the red flag for games and merchandise; distortion and story are the protection.
• In docudramas, the scene-by-scene defamation review matters more than the publicity analysis.
• Keep the clearance file as you go; it is the insurance application and the motion record.

This document is general information, not legal advice for any particular situation; the law changes, and the facts matter.

Related Documents

Related Articles

• The Right of Publicity and the First Amendment: Transformative Use, Newsworthiness, and the Limits of Owning a Persona: the doctrine behind every item in this checklist.
• Right of Publicity Basics: the elements of the claim and who holds the right.
• The Right of Publicity: Name, Image, Likeness, Digital Replicas, and the Limits of Owning Yourself: the statutory patchwork and synthetic performers.
• Trademark Fair Use: Descriptive Use, Nominative Use, and Expressive Works After Jack Daniel's: the federal side of the Rogers question.
• Defamation, Business Disparagement, and Online Reviews: the claim that actually threatens most docudramas.
• Anti-SLAPP Statutes and Strategic Litigation Against Public Participation: the statutes and the federal-court split.
• Video Game Law: Intellectual Property, Virtual Goods, User Content, and Player Protection: the wider legal framework for games.
• Section 230 and Platform Liability: What the Statute Actually Says and Where It Stops: platform immunity and its intellectual property exception.

Related Guides

• Clearing Expressive Works Against Right of Publicity Claims: A Practical Guide: the chronological clearance procedure.
• Licensing and Protecting Name, Image, and Likeness: A Practical Guide: when a license is the better path.
• Filing an Anti-SLAPP Motion: A Practical Guide: deadlines, evidence, fees, and appeals.
• Producing a Film or Series: Rights, Talent, and Distribution Agreements: chain of title, releases, and delivery.
• Sponsorship, Endorsement, and Influencer Agreements: A Practical Guide: celebrity marketing done with consent.

Related Checklists

• Right of Publicity Clearance Checklist: A Practical Checklist: releases, stock imagery, and escalation.
• Trademark Fair Use Analysis Checklist: A Practical Checklist: the parallel review for marks in expressive works.
• Game Launch Legal Checklist: A Practical Checklist: where likeness questions should be caught before launch.
• Anonymous Speaker Unmasking Checklist: A Practical Checklist: identifying an anonymous impersonator.
• Litigation Hold and Evidence Preservation Checklist: A Practical Checklist: preserving drafts, research, and marketing files.
• Publishing and Merchandising Agreement Checklist: license terms for likeness merchandise.

Related Toolkits

• Publicity and Free Speech Toolkit: Transformative Use Memos, Newsworthiness Analyses, and Anti-SLAPP Motions: memo outlines and motion templates for both sides.
• Right of Publicity Toolkit: Releases, NIL Agreements, and Takedown Demands: releases and demand letters.
• Entertainment and Media Production Toolkit: Rights, Talent, and Distribution: depiction releases and production paperwork.
• Consumer Marketing Compliance Toolkit: TCPA, CAN-SPAM, Auto-Renewal, and Endorsements: endorsement disclosures for brand campaigns.