Summary. The right of publicity was invented in 1953 to solve a problem about baseball cards. Seventy years later it is the doctrine everyone reaches for when a synthetic version of a person's face or voice appears in a commercial, a song, or a political advertisement, and it is straining under the weight. This article explains the doctrine and the statutes built on top of it: the origins of the right, the state-by-state variation in what is protected and for how long, the First Amendment defenses including the transformative use test and the Rogers framework, and copyright preemption. It then addresses the digital replica statutes, including Tennessee's ELVIS Act, California's 2024 legislation, New York's provisions on deceased performers and synthetic performers, and the federal statutes and proposals. A long section covers college athlete NIL after Alston and the House settlement, and a practical section covers contracting for digital replicas, consent, and platform takedowns. It closes with checklists, a worked example, an FAQ, and related reading.

In 1988, Ford's advertising agency wanted Bette Midler's voice for a car commercial. She declined. So the agency hired one of her backup singers and told her to sound "as much as possible like the Bette Midler record."

The Ninth Circuit held that was actionable. "The human voice is one of the most palpable ways identity is manifested," Judge Noonan wrote. "To impersonate her voice is to pirate her identity." Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988).

Today, that agency would not need to hire a singer. It would need about forty seconds of Midler's recorded voice and a consumer-grade cloning tool, and the result would be closer to indistinguishable than any impersonator could manage.

That change, from imitation requiring human talent to replication requiring a laptop, is what the last three years of legislation have been about.

The short answer

  • The right of publicity protects a person's interest in the commercial use of their identity: name, likeness, voice, signature, and, in some states, other identifying attributes.
  • It is state law. There is no general federal right of publicity. Roughly half the states have statutes, most others recognize a common law right, and the variation is substantial: what is protected, whether it survives death, for how long, what remedies are available, and what defenses apply all differ.
  • The First Amendment limits it. News, commentary, biography, parody, satire, art, and most expressive works are protected. The tests courts use to draw the line, principally transformative use and the Rogers framework, are inconsistent and much criticized.
  • New digital replica statutes in Tennessee, California, New York, and elsewhere add explicit protection for voice and synthetic likenesses, extend liability to those who make or distribute cloning tools in some formulations, and impose consent and representation requirements in performer contracts.
  • Federal law is partial. There is no enacted general federal right, though the NO FAKES Act has been introduced repeatedly. Congress has enacted narrower measures addressing nonconsensual intimate imagery, and the FTC has a rule addressing impersonation of government and businesses.
  • College athlete NIL is a distinct body of law arising from antitrust litigation, state statutes, and the House settlement, and it has its own contracting norms.

Part I: The doctrine

Origins

The right began as a privacy tort. Warren and Brandeis's 1890 article, The Right to Privacy, 4 Harv. L. Rev. 193, prompted early cases, and Prosser later organized the field into four privacy torts, the fourth being appropriation of name or likeness.

The commercial right was named in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953), where Judge Frank held that a ballplayer had, in addition to a privacy right, "a right in the publicity value of his photograph," which could be granted exclusively. That transformed a personal dignitary interest into an assignable property right, and the modern industry followed.

The Supreme Court has addressed it once. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), held that the First Amendment did not bar a claim by a "human cannonball" performer whose entire act was broadcast on the news without consent. The Court emphasized that the broadcast went "to the heart of petitioner's ability to earn a living as an entertainer," and analogized the interest to copyright and patent: it protects the incentive to produce a performance of value to the public.

Zacchini is narrow, and it is the only Supreme Court guidance there is.

Elements

The typical claim requires:

  1. Use of the plaintiff's identity (name, likeness, voice, or other identifying attribute);
  2. Appropriation of the commercial value of that identity, or use for advertising or purposes of trade;
  3. Lack of consent; and
  4. Resulting injury.

Some statutes require knowing use. California's § 3344 requires a "knowing" use and provides statutory damages of $750 or actual damages, whichever is greater, plus profits, punitive damages, and attorney's fees.

What counts as identity

Courts have read "identity" broadly, which is the doctrine's greatest strength and its most criticized feature.

That tension, between protecting identity and monopolizing associations, runs through every case in the field, and the digital replica statutes have intensified it.

Post-mortem rights

Whether the right survives death, and for how long, varies enormously:

  • California: 70 years after death, Cal. Civ. Code § 3344.1, with registration with the Secretary of State required to claim rights in certain circumstances.
  • Tennessee: 10 years after death, with indefinite extension so long as the right is continuously used, which is why Tennessee is the home of the Elvis jurisprudence.
  • New York: 40 years after death for a deceased performer or personality, N.Y. Civ. Rights Law § 50-f, added in 2020 and effective 2021, which also created a cause of action for digital replicas of deceased performers in expressive works without a conspicuous disclaimer.
  • Indiana: 100 years, with a notably broad statute.
  • Some states, including New York for living persons under §§ 50 and 51, provide no post-mortem right at common law.

Choice of law is decisive. Most courts apply the law of the decedent's domicile at death, which is why estate planning for public figures involves domicile decisions that would otherwise be tax-driven. See Who Will Inherit Your Intellectual Property.

Part II: The First Amendment

Every right of publicity case with an expressive defendant becomes a First Amendment case, and the doctrine here is genuinely unsettled.

The transformative use test

Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001), imported the copyright fair use concept of transformation. The California Supreme Court asked "whether the celebrity likeness is one of the 'raw materials' from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question." A charcoal drawing of the Three Stooges sold on T-shirts was not transformative; the artist's skill went into literal depiction.

The test has been applied inconsistently. Compare:

The critique, which the Supreme Court echoed in a different context in the copyright case Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023), is that "transformative" has been asked to do too much work. See Fair Use After Warhol.

The Rogers framework and its limits

Some courts have borrowed Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), from trademark law: for expressive works, the use is protected unless it has no artistic relevance to the underlying work or explicitly misleads as to source.

Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023), narrowed Rogers in trademark law by holding it inapplicable where the mark is used as a source identifier. Its effect on right of publicity analysis is unresolved, but courts should be expected to apply Rogers less freely. See Trademark Dilution Under the TDRA.

The predictable safe harbors

Whatever test applies, these uses are generally protected:

  • News reporting and commentary, including about celebrities.
  • Biography, documentary, and historical works.
  • Parody and satire directed at the person or at something they represent.
  • Fiction, including works using real people as characters, subject to defamation and false light limits.
  • Incidental use, where the identity appears fleetingly and is not the draw.
  • Advertising for protected content (an advertisement for a magazine that lawfully featured the person may use the same material).

And these are generally not:

  • Endorsement implications in commercial advertising.
  • Merchandise bearing a literal likeness.
  • Product packaging.

Copyright preemption

Section 301 of the Copyright Act preempts state rights equivalent to copyright in works of authorship. Right of publicity claims survive preemption where the claim protects the persona rather than a fixed work, but claims premised on the unauthorized use of a copyrighted recording or photograph may be preempted. The line is contested, and it matters enormously in music cases where the plaintiff's voice appears in a recording the defendant licensed.

Part III: The digital replica statutes

Tennessee's ELVIS Act

The Ensuring Likeness Voice and Image Security Act, effective July 1, 2024, amended Tenn. Code Ann. § 47-25-1101 et seq. It is the first American statute written specifically for AI replication, and its three innovations matter:

  1. Voice is expressly protected as a distinct attribute, defined to include a voice that is "readily identifiable and attributable to a particular individual, regardless of whether the sound contains the actual voice or a simulation."
  2. Liability extends to tools. A person is liable who distributes, transmits, or otherwise makes available an algorithm, software, tool, or other technology, service, or device whose primary purpose or function is the production of a particular individual's photograph, voice, or likeness without authorization. That is the first American provision aimed at the tooling layer rather than only the output.
  3. Exclusions preserve expression, including for news, public affairs, sports broadcasts, and works of comment, criticism, scholarship, satire, or parody, and for fleeting or incidental use.

The Act provides for injunctive relief, actual damages plus profits, and, for knowing violations, treble damages and fees, and it creates a Class A misdemeanor.

Tennessee's leadership here is not accidental: the Nashville music industry drove it, and the statute's title is a monument to the state's most litigated post-mortem publicity right.

California's 2024 legislation

California enacted two complementary statutes:

AB 2602 (Cal. Lab. Code § 927) makes unenforceable a provision in a personal or professional services contract that permits the creation and use of a digital replica of an individual's voice or likeness in place of work the individual would otherwise have performed in person, if:

  • the provision does not include a reasonably specific description of the intended uses; and
  • the individual was not represented by legal counsel or by a labor union whose collective bargaining agreement expressly addresses digital replica uses.

That is a consent-quality rule rather than a prohibition, and it responds directly to the concerns that drove the 2023 entertainment industry strikes.

AB 1836 amended Cal. Civ. Code § 3344.1 to prohibit the production, distribution, or making available of a digital replica of a deceased personality's voice or likeness in an expressive audiovisual work or sound recording without consent of the estate, with exceptions for news, public affairs, documentary, biographical, historical, satirical, parodic, and comment uses, and for fleeting or incidental use.

California also enacted measures addressing election-related synthetic media and platform obligations, some of which have been challenged on First Amendment grounds.

New York

Section 50-f of the Civil Rights Law protects deceased performers and personalities for 40 years, and specifically addresses digital replicas in scripted audiovisual works and live performances, requiring a conspicuous disclaimer where consent is absent to avoid liability in certain circumstances. New York also enacted provisions addressing synthetic performers in advertising, requiring disclosure when an advertisement uses a synthetic performer.

Other states

Numerous states have enacted narrower measures: statutes addressing synthetic election communications with disclosure or timing restrictions, statutes criminalizing sexually explicit deepfakes, and statutes protecting the likenesses of minors. The pattern is rapid, uncoordinated, and likely to produce constitutional litigation, particularly over political speech provisions.

Federal

  • The NO FAKES Act (Nurture Originals, Foster Art, and Keep Entertainment Safe) has been introduced in successive Congresses. It would create a federal property right in an individual's voice and visual likeness, extending post-mortem for a term with renewal conditions, with safe harbors for online services that remove replicas on notice, and exclusions for news, commentary, parody, and other protected uses. It has drawn support from performers' unions and record labels, and opposition from technology companies and some civil liberties organizations concerned about scope and about the notice-and-takedown mechanism. It has not been enacted.
  • The TAKE IT DOWN Act, enacted in 2025, criminalizes the publication of nonconsensual intimate imagery, expressly including AI-generated depictions, and requires covered platforms to establish a notice-and-removal process with a short removal deadline, enforced by the Federal Trade Commission.
  • The FTC's rule on impersonation of government and businesses, 16 C.F.R. Part 461, addresses impersonation in commerce, and the Commission has considered extending it to impersonation of individuals.
  • Lanham Act § 43(a) provides a false endorsement theory where a celebrity's identity is used in a way likely to cause confusion about sponsorship. This is the closest thing to a federal right of publicity and is frequently pleaded alongside state claims. See False Advertising and Lanham Act Section 43(a).

Part IV: College athlete NIL

This is a separate body of law that shares the acronym and little else.

The background. For decades the NCAA prohibited athletes from being compensated for their name, image, and likeness. That regime was dismantled through antitrust litigation:

  • O'Bannon v. NCAA, 802 F.3d 1049 (9th Cir. 2015), held that NCAA rules restricting compensation were subject to antitrust scrutiny and that the rules as applied violated the Sherman Act, while limiting the remedy.
  • NCAA v. Alston, 594 U.S. 69 (2021), unanimously affirmed that NCAA restrictions on education-related benefits violate the Sherman Act under rule of reason analysis. Justice Kavanaugh's concurrence went further: "The NCAA is not above the law," and its remaining compensation rules "raise serious questions under the antitrust laws."
  • The NCAA suspended its NIL prohibition effective July 1, 2021, and a patchwork of state NIL statutes took effect on varying terms.
  • The House v. NCAA settlement, approved in 2025, resolved several consolidated antitrust cases with back-damages payments to former athletes and a forward-looking framework permitting institutions to share revenue directly with athletes subject to an annual cap, along with roster limits and a clearinghouse for third-party NIL deals above a threshold.

What practitioners actually handle:

  • NIL agreements between athletes and brands or collectives: grant of rights, scope, exclusivity, term, deliverables, morals clauses, compliance with school and conference policies, and termination.
  • Collective structures and their tax treatment, particularly where charitable status has been claimed.
  • State law compliance, including agent registration requirements, prohibitions on inducements, and disclosure obligations.
  • International students, where visa status limits the ability to earn active income in the United States, a genuinely difficult problem with few clean answers.
  • High school NIL, now permitted in many states with varying restrictions.
  • Institutional policies and the emerging revenue-sharing contracts.
  • Employment status, which remains contested and would change everything if athletes were held to be employees. See Independent Contractor or Employee?.

For young athletes signing their first agreements, the practical advice is unglamorous and important: read the exclusivity provision, understand the term, do not grant perpetual rights, keep the school's compliance office informed, and set aside money for taxes on income that arrives without withholding.

Part V: Practical guidance

For brands and advertisers

  • Get written consent for any use of a real person's identity in advertising, with a clear scope: media, territory, term, and permitted modifications.
  • Address digital replicas expressly. A 2015 talent release does not authorize creating a synthetic version of the performer. If you want that right, negotiate it specifically, describe the intended uses, and expect to pay for it.
  • Audit your AI-generated creative. A generated "person" that resembles a recognizable individual is a claim, and generated voices are the highest-risk category.
  • Do not rely on "we did not use their name." Midler, Waits, White, and Carson all involved uses without the plaintiff's name.
  • Clear music separately. Rights in a recording, in the composition, and in the performer's identity are three different things.
  • Watch the sound-alike temptation. Hiring an impersonator because the artist declined is the fact pattern that produced Midler and Waits, and now it also produces a punitive damages argument.

For talent and their representatives

  • Never grant an unrestricted digital replica right. Require specific descriptions of use, a defined term, approval rights, compensation for each use category, and restrictions on categories (political, adult, alcohol, tobacco, firearms, competitor products).
  • Address post-mortem rights in the estate plan, including domicile, registration where required (California), and who controls consent.
  • Register where a statute requires or permits it.
  • Monitor. Automated tools for voice and likeness detection exist and are improving.
  • Preserve evidence of unauthorized uses, with capture dates and provenance. See Authenticating Website Evidence.

Enforcement against synthetic media

The practical toolkit, in order of speed:

  1. Platform reporting. Most major platforms prohibit unauthorized synthetic media of real people and have dedicated reporting channels. This is faster than any legal remedy.
  2. Copyright takedown, where the synthetic work incorporates a copyrighted photograph or recording. Section 512 gives a fast, well-understood process. See How to File a DMCA Takedown Notice and Respond to One.
  3. Statutory takedown under the federal nonconsensual intimate imagery statute, where applicable.
  4. Demand letter to the poster or the advertiser.
  5. Litigation, with a preliminary injunction motion where the harm is ongoing. See Preliminary Injunctions and Temporary Restraining Orders.

Section 230 limits claims against platforms for third-party content, subject to the intellectual property carve-out in § 230(e)(2), whose application to state right of publicity claims has divided the circuits. Some courts treat the right of publicity as an intellectual property right outside § 230's protection; others limit the carve-out to federal intellectual property law. Plead accordingly, and expect the platform to move to dismiss.

Contract clauses worth having

For a talent agreement:

Producer may not create, use, or authorize any Digital Replica of Artist's voice or likeness except as expressly described in Exhibit __, which shall specify for each permitted use the medium, territory, term, and context. Any use not so described requires Artist's separate written consent and separate compensation. Producer shall not use any Digital Replica in connection with [excluded categories]. All Digital Replica assets shall be securely stored, shall not be provided to any third party, and shall be destroyed within __ days after the end of the Term, with written certification.

For a brand agreement with an agency:

Agency represents and warrants that no deliverable incorporates, simulates, or is derived from the voice, likeness, name, or other identifying attribute of any identifiable individual without a written release, and that no generative tool was used to produce any depiction of a person without Agency having confirmed that the output does not resemble an identifiable individual. Agency shall indemnify Client against any claim arising from a breach of this representation.

See Indemnification and Limitation of Liability.

Part III-A: Provenance, labeling, and the technical layer

Legislation is only one response to synthetic media. The other is technical, and it is increasingly written into law.

Content provenance standards. The Coalition for Content Provenance and Authenticity has published a specification for cryptographically signed content credentials: metadata attached to a file recording how it was created, what tools touched it, and what edits were made, in a form that can be verified and that breaks visibly if tampered with. Camera manufacturers, editing software vendors, and several model providers have implemented it.

Watermarking and detection. Statistical watermarking of generated images and audio, and classifiers that attempt to detect synthetic content after the fact, are both deployed and both imperfect. Watermarks can be stripped by re-encoding or screenshotting. Detectors produce false positives, which matters enormously when the consequence is an accusation of fabrication.

Where the law is going. Several regimes now require disclosure or marking rather than prohibition:

  • The EU AI Act requires providers of generative systems to mark synthetic content in a machine-readable format and requires deployers of deepfakes to disclose the artificial origin, with exceptions for evidently artistic, creative, satirical, or fictional works. See AI Governance and Compliance.
  • California's AI transparency legislation directs large generative providers toward provenance disclosures and detection tooling.
  • State election statutes commonly require conspicuous disclaimers on synthetic political communications within a window before an election.
  • New York requires disclosure when an advertisement uses a synthetic performer.

What this means practically. For a content producer, three habits reduce most of the risk:

  1. Preserve originals with metadata. A camera original with intact content credentials is the cheapest authentication evidence available, and it is worthless if the workflow strips metadata on export. Configure the pipeline to preserve it.
  2. Label synthetic content voluntarily, and consistently. The disclosure obligations are converging, and a producer that already labels is compliant everywhere by default.
  3. Keep the provenance record for licensed synthetic assets: whose voice or likeness trained the model, what consent was obtained, what the license permits, and what indemnity backs it.

For litigators, the corollary is that authentication practice is changing. A screenshot of a video is no longer meaningful evidence of what the video showed. Demand originals, preserve hashes, and expect authentication to require an expert more often than it used to. See Authenticating Website Evidence and Capturing the Web.

A worked example

Solstice Beverage Co. (fictional) wants a campaign featuring a voice that sounds like a well-known retired broadcaster, Ray Okonjo (fictional), narrating its product story. Okonjo declined the campaign.

Option A: hire a sound-alike. This is Midler and Waits. If the voice is readily identifiable as Okonjo's and the intent was to evoke him, Solstice faces a right of publicity claim, a Lanham Act false endorsement claim, and, on these facts, a punitive damages argument. No.

Option B: clone his voice from broadcast recordings. Worse. In Tennessee, this violates the ELVIS Act directly, and the vendor that supplied the cloning tool may also be exposed if its primary purpose is unauthorized replication. In California, it is a § 3344 knowing use. It also likely infringes copyright in the source recordings. No.

Option C: hire a different narrator with a similar general style. Fine, provided the result is not readily identifiable as Okonjo. The distinction is between a category of voice (warm, authoritative, mid-Atlantic) and an identifiable individual. Document the casting process and the direction given, and specifically instruct the director and the talent not to imitate any particular person. That documentation is the defense.

Option D: license a synthetic voice from a provider. Ask three questions: whose voice was used to train it, what consent was obtained, and what indemnity is offered. Reputable providers license voices from consenting performers with defined terms. Get the chain of consent in writing, and get an indemnity that is worth something.

Now change the facts. Okonjo has died, and his estate is interested. Solstice must determine which state's law governs (domicile at death), whether a post-mortem right exists and for how long, whether registration is required, and who has authority to consent. If Okonjo was domiciled in California, § 3344.1 applies for 70 years, AB 1836 governs digital replicas in audiovisual works and recordings, and registration with the Secretary of State affects the claim. If he was domiciled in New York, § 50-f applies for 40 years with its own digital replica provisions and disclaimer mechanics.

And the deal terms. Solstice should negotiate specific use descriptions, a defined term, approval over each finished asset, category exclusions, restrictions on further use of the model, secure storage, and destruction of the voice model at the end of the term with certification. The estate should insist on all of it.

Checklists

Before using anyone's identity

  • Written release covering the specific use, medium, territory, and term.
  • Digital replica rights addressed expressly, with specific use descriptions.
  • Post-mortem analysis if the person is deceased: domicile, term, registration, authority to consent.
  • Music, photograph, and footage rights cleared separately from identity rights.
  • Union and guild requirements checked.
  • Category exclusions and approval rights documented.

For AI-generated creative

  • Confirm no output resembles an identifiable individual.
  • Confirm no voice output is identifiable as a particular person.
  • Obtain vendor representations on training data consent.
  • Obtain an indemnity with a meaningful cap and no gutting carve-outs.
  • Keep records of prompts, outputs, and review decisions.
  • Apply provenance or disclosure labeling where required by state law.

For talent

  • No unrestricted replica grants, ever.
  • Compensation per use category, not a single buyout.
  • Approval rights over finished assets.
  • Model destruction and certification at term end.
  • Estate planning addressing post-mortem control and domicile.
  • Monitoring in place.

Frequently asked questions

Is there a federal right of publicity? No general one. The Lanham Act's false endorsement provision is the closest analogue. The NO FAKES Act would create one but has not been enacted. Federal statutes address narrower harms, including nonconsensual intimate imagery.

Can I use a celebrity's photo in my ad if I bought the photo? No. Buying the copyright in a photograph does not give you the subject's publicity rights. You need both.

Is a parody safe? Usually, if it is genuinely commenting on the person or on what they represent, and if it is not being used as advertising for an unrelated product. The analysis has tightened after Jack Daniel's where the use also functions as a source identifier.

Can I make a movie about a real person without permission? Generally yes. Biographical and historical works are protected, subject to defamation and false light limits and, for deceased performers, to statutes like New York's requiring a disclaimer for digital replicas in scripted works.

Does the right cover AI-generated images that merely resemble someone? That is the frontier question. If the output is readily identifiable as a particular person and is used commercially, a claim is likely. If it resembles a general type, it is not. Expect litigation to define the boundary.

We are a platform. Are we liable for user-generated deepfakes? Section 230 provides substantial protection for third-party content, with an intellectual property carve-out whose scope is contested for state right of publicity claims. Separate statutes now impose notice-and-removal obligations for specific categories. Build the removal process regardless.

How do I protect a deceased family member's likeness? Determine the law of the state of domicile at death, whether that state recognizes a post-mortem right, its duration, whether registration is required, and who holds the right under the will or by statute. Then register, monitor, and enforce. Address it in the estate plan while the person is living.

What about political deepfakes? Numerous states have enacted disclosure or timing restrictions for synthetic election communications, and several have been challenged on First Amendment grounds with mixed results. Political speech receives the strongest constitutional protection, which makes these the hardest statutes to sustain.

Do college athletes have different rights? The underlying right of publicity is the same. What changed is the removal of the NCAA's compensation restrictions through antitrust litigation, plus a layer of state statutes, institutional policies, and the House settlement framework governing how deals are disclosed and how institutions may share revenue.

Closing thought

Judge Kozinski's warning in White v. Samsung was that a right in "the public's mental association" is a right with no natural boundary. He was writing about a robot in a wig. The concern reads differently now that anyone can produce a convincing replica of a real person's face and voice in an afternoon.

Both things are true. The old doctrine was already too vague, and the new technology makes the underlying harm far more serious. The statutes written in response, Tennessee's, California's, New York's, and the federal proposals, try to solve the second problem without making the first one worse, mostly by defining protected attributes precisely, focusing on identifiability, and preserving broad exclusions for news, commentary, and art.

Whether they succeed is a question for the next decade of litigation. In the meantime, the practical advice is stable and applies to everyone: get consent in writing, describe the permitted uses specifically, address synthetic replicas as their own category with their own compensation, and never assume that a release signed before this technology existed authorizes anything at all.

Related articles

This article is provided for general informational purposes and does not constitute legal advice. Right of publicity law varies substantially by state and digital replica legislation is developing rapidly. Consult qualified counsel about any particular use, license, or dispute.