Right of Publicity Basics

Imagine you wake up one morning, pour your coffee, open your phone, and there you are: your face, your name, your voice, plastered across an advertisement for a weight-loss supplement you have never heard of, never used, and would never endorse. You did not pose for it. You did not sign anything. You did not get paid. Somewhere, a marketer decided your likeness would help move product, and helped themselves.

Most people's first instinct is to reach for words like "defamation" or "privacy" or simply "they can't do that, can they?" The precise legal answer turns out to be more interesting, and it has a name: the right of publicity. In plain English, the right of publicity is the right of a person to control the commercial use of their identity, the bundle of recognizable things that make you you, and to stop other people from cashing in on that identity without permission. It is the reason a soda company cannot run an ad implying that a famous quarterback drinks its product unless the quarterback agreed. It is also, increasingly, the reason a tech startup cannot clone your voice to read audiobooks or generate a synthetic video of you saying things you never said.

This article is a friendly but thorough tour of that doctrine. We will cover what the right of publicity protects and what it does not; where it comes from (a surprisingly recent invention, born in a dispute over bubble gum trading cards); who gets to claim it; whether it survives your death, and the registration hoops you have to jump through if it does; how it collides with the First Amendment, the "transformative use" defense, and the surprisingly potent doctrine of copyright preemption; how it differs from cousins like defamation, false light, and trademark; what you can actually recover when you win; and how a brand-new wave of artificial-intelligence and deepfake legislation, headlined by Tennessee's "ELVIS Act," is reshaping the whole field. By the end you will understand the law well enough to spot the issues in your own life, whether you are a celebrity, a small-business owner running an ad, an estate planner, or just someone who would prefer not to star in a supplement commercial without their consent.

A heads-up before we dive in: because the right of publicity is overwhelmingly a matter of state law, there is no single national rulebook. More than 30 states recognize the right in some form, some by statute, some by common law, and some by both, and they disagree about almost everything: what it is called, what it protects, how long it lasts, and whether it survives death. We will flag those variations as we go, but the single most important takeaway you can carry away is this: the answer depends heavily on which state's law applies.

What the Right of Publicity Actually Protects

At its core, the right of publicity protects the commercially valuable aspects of your persona, a useful umbrella term lawyers use for the collection of identifying attributes that together signal "this is that specific person." The classic protected attributes are:

Your name (and often nicknames, stage names, and even unmistakable misspellings).
Your image, photograph, or likeness (including a recognizable drawing or look-alike).
Your voice (including a deliberate, recognizable imitation, as we will see).
Other identifying characteristics, the "indicia of identity," which courts and statutes have stretched to cover things like a signature catchphrase, a distinctive race car, or even a particular pose and setting that the public unmistakably associates with one person. Indiana's statute, for instance, expressly protects a person's "distinctive appearance, gestures, [and] mannerisms" (Ind. Code § 32-36-1-7), and the Ninth Circuit has held that a combination of manner of dress, hairstyle, and physical props can violate California's common-law right if those elements identify a particular persona.

The right of publicity is not about hurt feelings, and it is not about whether something is true. It is about commercial exploitation, the unauthorized use of your identity to sell something or to gain a commercial advantage. That commercial focus is the doctrine's defining feature, and it is what distinguishes it from privacy-based claims that compensate emotional distress. As the leading treatise frames it, the right of publicity is "primarily concerned with harm to a person's economic interest in their identity resulting from unauthorized commercial use," whereas the older privacy tort of appropriation was concerned with the mental distress of being exposed (see generally J. Thomas McCarthy, The Rights of Publicity and Privacy § 5:63 (2d ed.)).

A concrete way to feel the boundary: if a company puts your face on a billboard to sell mattresses, that is a publicity problem. If a newspaper prints your photograph alongside an article reporting that you survived a tornado, that is news, and the right of publicity almost certainly does not reach it. The line between "selling something" and "saying something" runs through the entire body of law, and most of the hard cases live right on top of that line. The statutes police that line carefully. Both of California's statutes, for example, provide that the mere fact that material is commercially sponsored or contains paid advertising is not enough to impose liability; there must be a "direct connection" between the use of identity and the sponsorship or sales pitch (Cal. Civ. Code §§ 3344(e), 3344.1(k)), and whether such a connection exists is a question of fact.

A quick vocabulary primer

Because this area is dense with terms of art, here are plain-language definitions you can keep in your back pocket:

Appropriation is the old privacy tort, recognized in the Restatement (Second) of Torts § 652C, for using another's name or likeness for one's own benefit. It is the historical ancestor of the right of publicity.
Persona / indicia of identity means the recognizable signals of who you are, broader than just a name or a photo.
Identifiability is the threshold question in every case: can the public actually tell that this person was the one used? It is a question of fact, often proven by public recognition, surveys, or contextual cues.
Postmortem right means a right of publicity that continues after death and can be enforced by the deceased person's heirs or estate.
Transformative use is a First Amendment defense (borrowed from copyright's fair-use vocabulary) that protects creative works that add significant new expression rather than merely reproducing a person's likeness.
Newsworthiness / public interest is the principle that genuine news, commentary, biography, and matters of public concern are generally exempt from publicity claims.
Digital replica is the new statutory term of art for an AI-generated, computer-generated, or electronically simulated version of a real person's voice or likeness, the concept around which the entire deepfake-era reform movement is organized.

A Brief, Surprising History: From Bubble Gum to the Supreme Court

The right of publicity is younger than you might guess. For the first half of the twentieth century, American courts handled "someone used my face in an ad" problems exclusively as privacy cases. The intellectual scaffolding came from a famous 1890 Harvard Law Review article by Samuel Warren and Louis Brandeis, "The Right to Privacy," which helped courts recognize a tort for the unwanted public use of one's identity. The trouble was that privacy law was built around dignitary harm, the indignity and emotional distress of exposure. That framing worked badly for celebrities, who were not exactly distressed to be in the public eye; they were distressed that someone else was making money off them.

The breakthrough came in 1953 in a dispute over, of all things, baseball trading cards and chewing gum. In Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953), two gum companies fought over the exclusive right to use ballplayers' photographs on cards. The problem was conceptual: if a player's only right was a personal, non-transferable privacy right, then a player could not grant anyone an exclusive license, and the whole trading-card economy would wobble. Judge Jerome Frank cut the knot. He held that, in addition to and independent of the privacy right, a person has a "right of publicity", a transferable, property-like right to control the commercial value of their likeness. The phrase itself was coined in that opinion. From a stick of gum, a doctrine was born.

The academic blessing followed quickly. The next year, in 1954, Professor Melville Nimmer published "The Right of Publicity" in Law and Contemporary Problems, giving the new right an intellectual foundation and a respectable pedigree. Over the next several decades, state courts and legislatures gradually adopted it, some by statute, some by common law, and some, confusingly, by leaving it tangled up inside their older privacy statutes. That last group is responsible for much of the doctrine's incoherence. In New York, for example, the right of publicity has no independent existence: the New York Court of Appeals held in Stephano v. News Group Publications, Inc., 64 N.Y.2d 174 (1984), that the right lives only inside the state's privacy statute (N.Y. Civ. Rights Law §§ 50–51), which is why New York case law on the very "nature" of the right can read as contradictory.

The Supreme Court's one and only word: Zacchini

To this day, the United States Supreme Court has decided exactly one right-of-publicity case, and it involved a man being shot out of a cannon. In Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), Hugo Zacchini performed a "human cannonball" act, a fifteen-second flight from a cannon into a net, at a county fair. A local television news crew filmed the entire act and broadcast it on the evening news. Zacchini sued, arguing that airing his entire performance destroyed its commercial value, why pay to see the cannonball when you just watched the whole thing for free?

The broadcaster invoked the First Amendment, leaning on the Court's earlier defamation decisions. The Supreme Court disagreed, in a 5–4 decision. It held that the First Amendment did not immunize a broadcaster who appropriated a performer's entire act. The Court drew a careful analogy to copyright and patent: just as those laws give creators an economic incentive to produce, the right of publicity protects a performer's economic interest in the fruits of their labor, "the very activity by which Zacchini acquired his reputation in the first place." Crucially, the Court emphasized that the station broadcast the whole fifteen seconds; reporting about the act, or showing a brief clip, would have been a different case.

Zacchini is the doctrine's constitutional anchor, and it is narrow on purpose. It tells us that the right of publicity can survive a First Amendment challenge, at least when the defendant appropriates the economic heart of a performance. But it leaves enormous room for free-speech defenses everywhere else, which is exactly where the modern battles are fought.

The Voice and Persona Cases: Midler, Waits, White, and the Stretchy Edges of Identity

If Haelan established the right and Zacchini constitutionalized it, the cases that made the right of publicity feel expansive, and a little wild, came out of California in the late 1980s and early 1990s. These are the cases that established that you do not need to use someone's literal name or photograph to violate their right of publicity. You can do it by evoking them.

Midler v. Ford: stealing the sound of a voice

In Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988), Ford wanted to use Bette Midler's hit recording of "Do You Want to Dance" in a car commercial. Midler declined. So Ford's ad agency hired one of Midler's former backup singers and instructed her to imitate Midler's distinctive vocal performance as closely as possible. The resulting commercial fooled listeners into thinking it was Midler herself.

The Ninth Circuit held that this was actionable. The court was careful: a voice is not copyrightable, and Ford had legitimately licensed the underlying song. But, the court reasoned, "the voice is as distinctive and personal as a face," and "to impersonate her voice is to pirate her identity." California's common-law right of publicity protected Midler against the deliberate imitation of her recognizable voice to sell a product. The result: a meaningful damages award and a durable principle. A copycat sound-alike, used commercially, can be just as actionable as the real thing.

A few years later the Ninth Circuit reached the same conclusion for Tom Waits, whose gravelly, unmistakable voice was imitated in a Frito-Lay Doritos commercial. In Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992), Waits won a substantial verdict, including punitive damages, on his voice-misappropriation claim. The lesson stuck: hiring a sound-alike to dodge a licensing fee is a recipe for liability. (Hold onto the Midler and Waits logic, because it is precisely the doctrinal seed that the AI voice-cloning statutes are now harvesting.)

White v. Samsung: a robot in a wig

Then came the case that practically defines the outer edge of the doctrine. In White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992), Samsung ran a series of humorous ads imagining products in the future. One depicted a robot wearing a blond wig, a gown, and jewelry, posed turning letters on a game-show set unmistakably evocative of Wheel of Fortune. The caption read "Longest-running game show. 2012 A.D." No name. No photograph. No voice. Just a robot, a wig, and a set.

Vanna White sued, and the Ninth Circuit allowed her common-law right-of-publicity claim to proceed. The court held that the right of publicity is not limited to name, likeness, or voice; it can extend to anything that identifies a person to the public. The robot, in context, identified Vanna White. Therefore a jury could find appropriation of her identity.

White is famous partly for the result and partly for the dissent it provoked. When the full Ninth Circuit declined to rehear the case, Judge Alex Kozinski wrote a now-celebrated dissent (White v. Samsung, 989 F.2d 1512 (9th Cir. 1993) (Kozinski, J., dissenting from denial of rehearing en banc)) warning that the majority had "overprotected" identity at the expense of free expression, parody, and the public domain of ideas. "Overprotecting intellectual property is as harmful as underprotecting it," he wrote. The Kozinski dissent has been cited and quoted ever since by defendants and scholars who think the right of publicity has grown too elastic. The tension he identified, between protecting a person's identity and protecting everyone else's freedom to refer to, comment on, parody, and depict famous people, is the central fault line of modern right-of-publicity law.

Taken together, Midler, Waits, and White establish a powerful principle: the right of publicity protects identifiability, not just specific catalogued attributes. If a commercial use conjures up a particular person in the public's mind, even by oblique means, it can trigger liability. As we will see, that very expansiveness is what makes today's AI voice-cloning and deepfake problems fit so naturally, if imperfectly, within the doctrine.

Who Owns a Right of Publicity?

A reassuring point first: in most states, everyone has a right of publicity, not just the famous. The majority rule is that every living natural person possesses the right regardless of celebrity (see, e.g., KNB Enterprises v. Matthews, 78 Cal. App. 4th 362 (2000)). California's statute, Cal. Civ. Code § 3344, protects any living person, celebrity or not, and California courts have applied it to ordinary people whose images were used commercially (see, e.g., Dora v. Frontline Video, Inc., 15 Cal. App. 4th 536 (1993)).

That said, the right is worth far more to celebrities, because their identities carry demonstrable commercial value, and a few states and courts actually condition the right on having such value. Some courts have suggested the right belongs only to people whose identities have commercial value (see, e.g., Landham v. Lewis Galoob Toys, Inc., 227 F.3d 619 (6th Cir. 2000); Pesina v. Midway Mfg. Co., 948 F. Supp. 40 (N.D. Ill. 1996)), and a few statutes build commercial value into the definition (see, e.g., Ind. Code § 32-36-1-6; Ohio Rev. Code § 2741.01(A)). Even where value is technically required, however, courts often presume commercial value once an identity has been used commercially without authorization, because the unauthorized use is itself evidence that someone thought it was worth taking (see, e.g., Canessa v. Kislak, Inc., 97 N.J. Super. 327 (Law Div. 1967)).

A few more wrinkles on the question of "who":

Corporations and brands generally do not have a right of publicity. That makes sense, businesses protect their identity through trademark and unfair-competition law, not publicity. But a company can own a person's publicity rights by assignment or use them under a license. (Tennessee courts have, unusually, extended the right to a musical group in a case applying Tennessee law, Apple Corps Ltd. v. A.D.P.R., Inc., 843 F. Supp. 342 (M.D. Tenn. 1993).)
Political and public figures have publicity rights too, but the First Amendment gives unusually strong protection to political speech and commentary about them, so the right rarely reaches commentary, satire, or news about politicians. It would reach, say, an advertisement falsely implying a senator endorses a vitamin.
A handful of states criminalize certain misuses, especially of service members. Several states, including Arizona and Oklahoma, attach criminal misdemeanor penalties to specified unauthorized commercial uses of the identity of members of the armed services (A.R.S. § 13-3726; Okla. Stat. tit. 21, § 839.1A), a reminder that the right is not always a purely civil, money-damages affair.
The right is transferable and licensable, that is the whole point of Haelan. A celebrity can grant an exclusive license to use their likeness on a product line, which is the legal machinery underneath every endorsement deal and merchandising agreement. If you are thinking about how identity-based assets pass to the next generation, our discussion of who will inherit your intellectual property walks through how publicity rights fit into an estate plan.

A Right That Outlives You: The Postmortem Patchwork

Here is where state-by-state chaos reaches its peak. Does your right of publicity die with you, or can your heirs keep enforcing it for decades? The answer is a flat "it depends on the state," and the variation is genuinely enormous.

Two foundational rules drive most postmortem disputes:

Whose law applies? Courts typically apply the law of the state where the deceased person was domiciled (legally resided) at the time of death. This single choice-of-law principle has produced famous, multimillion-dollar fights, because where you die can determine whether your estate has a valuable, enforceable right or nothing at all. (Some statutes even build domicile into their definition of who is protected, so a nonresident's estate may have no claim at all in that forum, see Ohio Rev. Code § 2741.03.)
Did the right exist and was it "descendible" at death? A state can recognize a living person's right but not a postmortem one, or it can recognize a postmortem right but cap its duration.

To make the spread concrete, here are illustrative durations among states that recognize a postmortem right (always confirm current statutes, because legislatures keep amending them):

Indiana is famously generous: its statute protects the right of publicity for 100 years after death (Ind. Code § 32-36-1-8). Indiana is a popular forum partly for that reason.
Tennessee, home of Elvis Presley, protects the right for an initial ten years after death and then indefinitely so long as it is continuously commercially exploited; the right terminates if it goes unused for any two-year period after that initial decade (Tenn. Code Ann. § 47-25-1104, part of the "Personal Rights Protection Act"). This "use it or lose it" structure grew up around the Presley estate.
California provides a postmortem right for 70 years after death for deceased "personalities", any natural person whose name, voice, signature, photograph, or likeness had commercial value at or because of their death (Cal. Civ. Code § 3344.1).
New York enacted a postmortem statute effective May 29, 2021, expressly making it a property right lasting 40 years after death for "deceased personalities," and separately protecting "deceased performers" against unauthorized digital replicas in audiovisual works and live performances (N.Y. Civ. Rights Law § 50-f). Before 2021, New York famously had no postmortem right at all, a gap that cost more than one celebrity estate dearly.
Virginia provides a comparatively short 20-year postmortem term (Va. Code § 8.01-40).

The fine print: registration and "continuing use" requirements

A trap for the unwary is that recognizing a postmortem right and successfully asserting one are two different things. Several states bolt procedural prerequisites onto the right, and missing them can be fatal:

Registration. Both California and New York require the estate to register its ownership claim with the secretary of state (and pay a fee) as a condition of recovery or suit. In California, registration is a prerequisite to recovering damages (Cal. Civ. Code § 3344.1(f)); in New York, it is a prerequisite to asserting a deceased personality claim at all (N.Y. Civ. Rights Law § 50-f(7)). An estate that never files the paperwork can hold a theoretically valuable right and still lose.
Continuing-use / lifetime-exploitation requirements. Tennessee's continuing-use rule (above) is one example; some states, by case law, have required that the person actually exploited their publicity rights during life for a common-law postmortem right to exist at all (see, e.g., Nature's Way Products, Inc. v. Nature-Pharma, Inc., 736 F. Supp. 245 (D. Utah 1990)).

The Prince example is instructive. When the musician Prince died in 2016 domiciled in Minnesota, his estate discovered that Minnesota had no clear postmortem right of publicity statute on the books, an awkward gap for one of the most commercially valuable identities in the world. The episode helped spur legislative attention to the issue (and is exactly the kind of problem that careful planning anticipates).

The practical upshot for anyone with a valuable identity, an athlete, a musician, an author, an influencer, is that postmortem publicity rights are real, devisable property in many states, and they belong in your estate plan. They can be left by will, placed in a trust, or assigned to a holding entity, and where registration is required, that filing should be on the executor's checklist. Because they are governed by domicile and vary so wildly, coordinating them with the rest of your IP, copyrights, trademarks, and patents, is a job for counsel. For more on that intersection, see our piece on who will inherit your intellectual property.

The First Amendment and the Transformative-Use Defense

Now we come to the doctrine's beating heart, the constant collision between the right of publicity and freedom of speech. Because the right lets one person control how others depict and refer to them, it is in permanent tension with the First Amendment, which protects the freedom to depict, comment on, criticize, parody, and tell true stories about real people, including famous ones. The law manages this tension through a set of defenses and exemptions. None of them is perfectly defined, and they vary by state, but the major ones are worth knowing well.

Newsworthiness and the public interest

The oldest and broadest exemption is for news, commentary, biography, and matters of public concern. If a magazine runs a celebrity's photo with a news story, or a documentary tells the story of a public figure, the right of publicity ordinarily does not apply, because the use is expressive and informational, not a commercial appropriation. California's statute, for example, expressly exempts use "in connection with any news, public affairs, or sports broadcast or account, or any political campaign" (Cal. Civ. Code § 3344(d)). This is why true-crime documentaries, unauthorized biographies, news photographs, and op-eds about famous people are generally safe.

It is also, in part, why the "life story" question is more nuanced than people expect. You generally do not need to buy someone's "life story rights" to make a movie, book, or documentary about the public, factual events of their life, those facts are not anyone's property, and recounting them is protected speech. (When a soldier sued the makers of the film The Hurt Locker, alleging they used his life story as the basis for the plot, his right-of-publicity and related claims failed; California's anti-SLAPP statute, which protects speech on matters of public interest, dispatched the case, Sarver v. Chartier, 813 F.3d 891 (9th Cir. 2016).) The reasons producers do buy life-story rights are practical, not strictly legal: to get the subject's cooperation and exclusive details, to obtain a release and a covenant not to sue, and to ward off adjacent claims like defamation, false light, or breach of confidence. A typical life story (or "life rights") option-purchase agreement gives the producer an exclusive option to develop the subject's story, a broad release, and a promise not to sue, which is exactly why studios pay for them even when, in pure free-speech theory, they might not have to.

The transformative-use test

The most important First Amendment defense for creative and artistic works is the transformative-use test, which the California Supreme Court adapted from copyright's fair-use doctrine in Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001). Saderup had drawn and sold charcoal portraits and T-shirts bearing a realistic likeness of the Three Stooges. The court asked a now-famous question: does the work merely reproduce the celebrity's likeness, or does it add significant creative elements so that it becomes "primarily the defendant's own expression rather than the celebrity's likeness"? Because Saderup's drawings were essentially literal reproductions, they failed the test and the right-of-publicity claim succeeded. By contrast, the court suggested, a fanciful, distorted, or commentary-laden depiction (the court pointed to Andy Warhol's silkscreens of celebrities as an example) would be transformative and protected.

The transformative-use test has been applied many times, with results that turn on how literal versus creative the depiction is:

In Winter v. DC Comics, 30 Cal. 4th 881 (2003), comic-book villains "Johnny and Edgar Autumn", half-worm caricatures evoking the musicians Johnny and Edgar Winter, were held transformative; the characters were "fanciful, creative" works, not literal depictions.
In Kirby v. Sega of America, Inc., 144 Cal. App. 4th 47 (2006), a video-game character inspired by a singer was transformative because the character was a creative, distinct figure, not a mere copy.
But realistic depictions in video games have repeatedly failed the test. In In re NCAA Student-Athlete Name & Likeness Litigation (Keller v. Electronic Arts), 724 F.3d 1268 (9th Cir. 2013), and Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013), EA's college-sports games used realistic avatars of real student-athletes, same jersey numbers, positions, heights, home states, doing exactly what the real athletes do (playing football). Both courts held the use was not transformative, because the avatars were literal recreations of the athletes performing their actual athletic activity. EA ultimately settled, paying tens of millions of dollars to former college players.

The Hart and Keller cases were a watershed. They are part of the legal and cultural backdrop to the explosion of NIL ("name, image, and likeness") rights for college athletes that followed the Supreme Court's antitrust decision in NCAA v. Alston, 594 U.S. 69 (2021). College athletes can now monetize exactly the publicity rights that EA once exploited for free, a direct, if delayed, vindication of the principle that those identities belong to the athletes. (And the wheel has turned: EA's college football franchise returned in 2024, this time paying the athletes for the right to use their names, images, and likenesses, the doctrine of Hart and Keller converted into a licensing line item.)

The Rogers test and other approaches

Not every court uses the transformative-use test. When the right of publicity collides with an expressive work's title or content, especially in the entertainment context, some courts apply the Rogers v. Grimaldi balancing test (originally a trademark/Lanham Act test, Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989)), which protects an artistic work unless the use of the person's identity has no artistic relevance or explicitly misleads as to endorsement. Others apply a "predominant use" test, asking whether the work predominantly exploits the commercial value of the identity or predominantly makes an expressive statement. The fragmentation is real: a case can come out differently depending on which First Amendment test the forum state applies. This is one more reason that which state's law governs is often the whole ballgame.

A practical caution for businesses: these defenses protect expression, not advertising. Using a celebrity's image in a news story is protected; using that same image to advertise your magazine in a way that falsely implies endorsement is not. The closer a use sits to pure commercial sales pitch, the weaker the First Amendment defense. If your business is crafting marketing campaigns, our advertising FAQs for small business and our overview of social media law basics explain the related endorsement and disclosure rules that travel alongside publicity issues.

The Sleeper Defense: Copyright Preemption

There is one more defense that businesses and litigators underestimate at their peril, and it has nothing to do with free speech. The federal Copyright Act preempts state-law claims that, in substance, try to control the reproduction, distribution, or performance of a copyrighted work (17 U.S.C. § 301). When a right-of-publicity claim is really just a dressed-up complaint about someone copying a copyrighted recording or image, courts can throw it out entirely.

The leading recent example is the long-running grudge match between two rappers. In In re Jackson, 972 F.3d 25 (2d Cir. 2020), Curtis Jackson (50 Cent) sued William Roberts (Rick Ross) for using a snippet of Jackson's voice and stage name in a free remix of Jackson's hit "In Da Club." Jackson framed it as a Connecticut common-law right-of-publicity claim. The Second Circuit, in a case of first impression for that circuit, held the claim preempted, both by implied preemption (because it furthered no substantial state interest distinct from copyright's) and, alternatively, by the statutory two-part test under § 301. The court reasoned that the use Jackson complained of was, at bottom, the reproduction of a sound recording, the precise subject matter copyright governs, so letting a state publicity claim ride on top of it would interfere with the federal scheme.

In re Jackson matters for two reasons. First, it shows that owning, or having assigned away, the copyright can be decisive: Jackson had earlier transferred control of the master recording to his label, and that assignment helped sink his claim. Second, the circuits split on exactly where the preemption line falls, particularly in music and other entertainment contexts, so the same facts can produce different results in different federal courts. The takeaway: when a publicity dispute centers on the copying of a song, film, or photograph, copyright preemption is often a faster and cleaner exit than wrestling with the First Amendment, and it is one of the first defenses a sophisticated defendant will reach for.

How the Right of Publicity Differs From Its Cousins

The right of publicity is frequently confused with several neighboring doctrines. Understanding the differences helps you pick the right claim, and avoid the wrong one.

Right of publicity vs. the privacy tort of appropriation

These are siblings that grew up in the same house. Both target unauthorized use of identity. The difference is the injury: the appropriation privacy tort (Restatement (Second) of Torts § 652C) compensates emotional and dignitary harm, the indignity of being commercially used, while the right of publicity compensates economic harm, the lost value of an identity that should have been licensed. Some states keep these as two distinct claims; others, like New York, have historically blended them inside a single privacy statute (N.Y. Civ. Rights Law §§ 50–51), which is why New York case law on the "nature" of the right can read as contradictory. A non-celebrity who is upset to find their face on a product may lean on appropriation; a celebrity who lost a licensing fee leans on publicity. Often both are pleaded together, and for an ordinary person, mental-distress damages under the privacy theory may actually be easier to prove than commercial-loss damages.

Right of publicity vs. false light and defamation

Defamation (libel and slander) is about false statements of fact that harm your reputation. False light is a privacy tort about portraying you in a misleading way that would be highly offensive to a reasonable person, even if no statement is technically "defamatory." Neither is about commercial value. The right of publicity, by contrast, can be violated by a use that is entirely truthful and flattering, putting a beloved athlete's real photo on a cereal box without permission is not false or offensive, but it still appropriates commercial value. So the doctrines protect different interests: defamation and false light protect reputation and truth; the right of publicity protects the economic value of identity. A single ad can sometimes violate several at once (imagine a doctored image that both implies a false endorsement and damages reputation), which is why complaints in this area often stack the claims.

Right of publicity vs. trademark and unfair competition

Trademark law protects source identifiers, words, logos, and symbols that tell consumers where a product comes from. The overlap with publicity is real, because a famous person's name can function as a trademark for goods and services (think of designers and athletes who build brands around their names). Both bodies of law share a concern with preventing consumers from being misled about endorsement or affiliation, the Lanham Act § 43(a) false-endorsement claim (15 U.S.C. § 1125(a)) is the federal cousin that celebrities frequently invoke alongside state publicity claims when an ad falsely implies they back a product. The differences: trademark requires use as a source identifier and turns on likelihood of confusion, whereas the right of publicity does not require confusion at all, mere unauthorized commercial use of identity can suffice. If you are weighing whether to register your own name as a brand, our article on trademarking your own name explains the surname rules and consent requirements, and our copyright vs. trademark explainer sorts out which IP regime does what.

Right of publicity vs. copyright

This is a frequent and important point of confusion, especially for photographers and the people they photograph. Copyright protects the photograph (the creative work) and belongs, by default, to the photographer, not the subject. The right of publicity protects the identity depicted and belongs to the subject. That means a photographer can own the copyright in a celebrity's photo while the celebrity still controls the commercial use of their likeness in it. A magazine can license the photo from the photographer to illustrate an article (protected expression) but still cannot turn around and use it to advertise a product without the celebrity's consent. As the In re Jackson discussion above shows, the two rights can also genuinely conflict, and the Copyright Act's preemption provision (17 U.S.C. § 301) sometimes knocks out a right-of-publicity claim that is, in substance, just an attempt to control the copying of a copyrighted work. Courts split on exactly where that preemption line falls, particularly in entertainment cases, and it remains an unsettled, heavily litigated frontier. For the foundations of the copyright side of that equation, see our comprehensive guide to copyright registration and our copyright FAQs.

Proving a Violation: The Nuts and Bolts

Before a plaintiff gets to remedies, they have to prove a violation, and a few elements surprise people:

Identifiability is the gateway. The plaintiff must show the public could actually tell it was them. For a common name, that may require survey evidence or contextual proof; California's statutes, for photographs, require that the person be "readily identifiable," defined as recognizable by a reasonable person with the naked eye (Cal. Civ. Code §§ 3344(b), 3344.1(i)).
Intent is usually not required. In most states, you do not have to prove the defendant knew it was using your identity; liability can be strict. California's living-person statute is a partial exception, requiring a "knowing" use, but courts read that narrowly, mere notice of a lack of consent (such as a written objection) can satisfy it (see, e.g., Blue v. Johnson, 2008 WL 2024995 (N.D. Cal. 2008)).
Proof of actual damage is usually not a prerequisite to liability, though it matters to recovery; statutory minimums (below) exist precisely because actual commercial loss can be hard to quantify.

Remedies: What Happens When the Right Is Violated

A successful right-of-publicity plaintiff can typically pursue a robust set of remedies, though the exact menu depends on the state and on whether the claim is statutory or common-law:

Compensatory damages for the commercial injury, often measured by the fair market value of the unauthorized use (what a license would have cost, frequently established through expert testimony or the rights-owner's own prior license fees) and/or the defendant's profits attributable to the misuse. Damages can also reach injury to professional reputation and lost future licensing opportunities, for instance, when an identity is tied to an inferior or controversial product. California's § 3344 lets a plaintiff recover the greater of statutory minimum damages or actual damages plus the defendant's profits.
Statutory minimum damages. Some statutes guarantee a floor, California § 3344 sets a minimum of $750 per violation, so a plaintiff need not prove a precise dollar figure to recover something.
Punitive (exemplary) damages for willful or malicious violations, which can dwarf the actual damages (Tom Waits's Doritos verdict famously included a hefty punitive component).
Injunctive relief, a court order stopping the ad, pulling the product, or enjoining the use. Courts routinely grant injunctions because harm to identity is hard to fully repair with money (see, e.g., Michaels v. Internet Entertainment Group, Inc., 5 F. Supp. 2d 823 (C.D. Cal. 1998)), and even where a statute is silent on injunctions (as California's are), courts use their inherent equitable power to issue them. For an ongoing campaign, an injunction is often the most valuable remedy of all, though a court may trim a nationwide order so it does not enforce a right in a state that does not recognize it.
Attorney's fees to the prevailing party under some statutes (again, California § 3344 provides for fees, a meaningful deterrent that can run in either direction).

Because damages can be substantial and fees can shift, businesses should treat clearance of name-and-likeness rights as a real compliance task, not an afterthought.

A Worked Example: Acme Beverage Company Learns the Hard Way

Let us put the pieces together with an invented scenario. (We will call our company Acme Beverage Co. and our celebrity Jordan Vega, a fictional retired soccer star, so no real parties are implicated.)

Acme is launching a sports drink. Its marketing team has three ideas:

Idea 1: Hire a Jordan Vega look-alike to appear in the ad, kicking a ball and giving a thumbs-up to the camera, no name mentioned. Risky. Under White v. Samsung, the right of publicity protects identifiability; if the look-alike, in context (soccer setting, signature celebration), conjures Vega in viewers' minds, a court could find appropriation of his identity even though Acme never said his name. The "we never used his name" defense will not save Acme if the whole point was to evoke him. Note that in most states Acme cannot escape by claiming it did not intend to copy Vega, intent is usually irrelevant to liability.

Idea 2: License an existing news photo of Vega from a wire service and use it in the ad with the caption "The drink of champions." Also risky, and arguably worse. Owning a copyright license to the photograph (from the photographer or agency) does not grant the right to use Vega's likeness in advertising. That is the copyright-vs-publicity distinction in action. The newsworthiness exemption will not help, because this is an advertisement, not news. Acme would likely also face a Lanham Act § 43(a) false-endorsement claim for implying Vega endorses the product. (Copyright preemption, the In re Jackson defense, would not rescue Acme here, because the wrong is using Vega's persona to sell a drink, not merely copying the photo, a distinct commercial interest copyright does not occupy.)

Idea 3: Pay Vega for a proper endorsement deal, with a written license specifying the scope, territory, term, and media. Safe, and smart. This is the Haelan machinery working as intended: Vega's publicity right is transferable, so a clean license eliminates the risk. A well-drafted celebrity endorsement agreement will pin down the exact rights granted (which attributes, which products), exclusivity, term and territory, approval rights over how Vega's identity appears, a morals clause cutting both ways, and, critically, whether Acme may use Vega's likeness in AI-generated or synthetic form, an increasingly standard clause (more on that next).

Now change one fact: suppose instead of an ad, a documentary filmmaker wants to make a film about Vega's career using archival footage and interviews. Different answer. That is expression and news/biography, squarely within the First Amendment and the newsworthiness exemption. The filmmaker generally does not need a publicity license, though the filmmaker may still seek a "life story" agreement for cooperation, exclusive access, and protection against adjacent claims. Same person, same footage, completely different legal treatment, because one use sells a drink and the other tells a story.

The New Frontier: AI, Voice Cloning, Deepfakes, and the ELVIS Act

For decades, the Midler and White cases sat at the speculative edge of the doctrine, useful but rarely invoked, because it was expensive and difficult to fake a famous person convincingly. Generative artificial intelligence demolished that barrier. Today, a few minutes of audio can train a model to clone a voice; a handful of photos can generate a photorealistic video of someone saying or doing anything. Suddenly the "robot in a wig" hypothetical from White feels quaint. The very expansiveness that Judge Kozinski warned about, protecting identity itself, turns out to be exactly what the AI era needs, and exactly where the old state-law patchwork strains hardest.

The legal response is arriving on two tracks: new state statutes built specifically for synthetic media, and proposed federal legislation that would, for the first time, create something close to a national right.

Tennessee's ELVIS Act

In March 2024, Tennessee enacted the Ensuring Likeness, Voice, and Image Security Act, the "ELVIS Act", the first state law in the country aimed squarely at AI voice cloning and deepfakes. It amended Tennessee's existing Personal Rights Protection Act to add voice as an expressly protected, property-based interest, and, critically, it created liability for making available the tools or services whose primary purpose is producing an unauthorized digital replica of a person's voice or likeness, not just for the end use. In other words, it reaches up the supply chain to the cloning technology itself. Tennessee, fittingly the home of Nashville's recording industry and of Elvis Presley, designed the statute to protect musicians from having their voices synthesized without consent. It is the template that other states are studying.

A wave of state statutes

Tennessee is not alone. A growing cluster of states has enacted or expanded statutes addressing digital replicas and synthetic performances:

New York's 2021 postmortem statute (N.Y. Civ. Rights Law § 50-f) already protects deceased performers against unauthorized digital replicas in audiovisual works and live performances, where the replica is realistic enough to fool a reasonable observer, an early recognition that synthetic resurrection of dead actors and musicians needed its own rule.
California enacted laws in 2024 (including AB 2602 and AB 1836) requiring informed consent and union-style protections before a person's digital replica may be used in employment-style performances, and extending protections to deceased performers' digital replicas. These were heavily shaped by Hollywood's labor concerns, the same concerns that animated the 2023 SAG-AFTRA strike, where AI replica rights were a central bargaining issue.
Other states have moved on election deepfakes and nonconsensual synthetic intimate imagery, related but distinct problems that overlap with publicity, privacy, and, at the federal level, the 2025 TAKE IT DOWN Act addressing nonconsensual intimate imagery, including AI-generated images.

The proposed federal NO FAKES Act

Because the state patchwork is so uneven, and because synthetic media crosses state and national borders instantly, there is serious momentum for a federal solution. The leading proposal is the NO FAKES Act (Nurture Originals, Foster Art, and Keep Entertainment Safe Act), introduced in Congress and reintroduced in the 2025 session. As proposed, it would create a federal property right in one's voice and visual likeness, specifically targeting unauthorized AI-generated digital replicas; make the right licensable and descendible (surviving death for a term of years); impose liability on those who produce or distribute unauthorized replicas, and potentially on online platforms that fail to remove them after notice (a DMCA-style notice-and-takedown structure); and build in First Amendment exceptions for news, commentary, parody, satire, biography, and documentary uses. As of this writing in 2026, the NO FAKES Act has not been enacted, and its scope, especially the balance between protecting identity and protecting expression, remains hotly debated. We flag it as a proposal to watch, not current law.

The big picture: the right of publicity, born from a bubble-gum dispute and stretched through cannonballs, sound-alikes, and robots in wigs, has become the legal field on which one of the defining questions of the AI era will be fought, who controls the synthetic version of you? For a much deeper dive into deepfakes, AI avatars, and synthetic celebrity likenesses, including the technical and contractual mechanics, see our companion piece, The Right of Publicity Meets Digital Doubles: Deepfakes, AI Avatars, and Celebrity Likeness. That article picks up where this primer leaves off and explores the cutting edge in detail.

Practical Guidance: For Businesses, For Individuals, For Estates

If you are a business using anyone's identity

Get written permission for commercial uses. A signed release or endorsement license that specifies scope (which attributes, which media, which territory, how long, exclusivity, approval rights, and, increasingly, whether AI/synthetic uses are allowed) is your best protection. Treat "we'll never get caught" as a budget line item, not a strategy.
Do not rely on owning the photo. A copyright license to an image is not a publicity license to the person in it.
Avoid the look-alike and sound-alike shortcuts. Midler, Waits, and White exist precisely to punish the "let's evoke them without paying them" maneuver, and intent to copy is usually unnecessary to liability.
Know the line between editorial and advertising. Newsworthy, expressive, and biographical uses are protected; advertising uses generally are not.
Mind related rules. False-endorsement (Lanham Act § 43(a)) and the FTC's endorsement and testimonial guides ride alongside publicity issues, our advertising FAQs cover that territory.

If your identity is being used without permission

Document everything (screenshots, URLs, dates, the product or service being sold), and note that capturing and authenticating that evidence has its own rules, see our practitioner's guides on the broader social media law basics.
Identify the governing state law, usually your state of residence or the state where the use occurred, and check whether it recognizes a statutory right, a common-law right, or both, and whether identifiability and any value requirement are met.
A cease-and-desist letter is often the efficient first move; our overview of writing a demand letter explains how to do it effectively (and how to avoid the traps that can backfire). For a knowing-use statute like California's, that letter can also help establish the defendant's knowledge going forward.
Move reasonably promptly. Statutes of limitations and equitable defenses like laches can erode a claim if you sit on it.

If you have a valuable identity to pass on

Treat your publicity rights as estate assets. In many states they are devisable property that can be left by will, placed in a trust, or held in an entity, just like copyrights and trademarks. Coordinate them with the rest of your IP estate; see who will inherit your intellectual property.
Domicile matters enormously. Where you reside at death can determine whether your right is worth a fortune (Indiana, Tennessee) or has evaporated (some states with no postmortem right). This is a planning variable, not a footnote.
Mind the procedural traps. If your domicile requires registration (California, New York) or continuing commercial use (Tennessee) to keep a postmortem right alive, build those filings and uses into the estate-administration plan, an unregistered right can be worthless.
If you are building a personal brand, consider whether to also register your name as a trademark, see trademarking your own name, and how that interacts with publicity, prenuptial, and business-structuring planning (a prenup, for example, can address future royalties and business assets, see prenuptial agreement basics).

Key Takeaways

The right of publicity is the right to control the commercial use of your identity, name, image, likeness, voice, and other recognizable indicia, and to stop others from cashing in without permission.
It is almost entirely a creature of state law, with no general federal statute (yet). More than 30 states recognize it, and they differ on nearly everything; which state's law applies is often the decisive question.
It originated in Haelan Laboratories (1953), was constitutionalized in the Supreme Court's only publicity decision, Zacchini (1977), and was dramatically expanded by the voice and persona cases, Midler v. Ford, Waits v. Frito-Lay, and White v. Samsung, which protect identifiability, not just literal name or photo.
Everyone has the right in most states, but it is far more valuable for celebrities, and it is transferable, licensable, and, in many states, descendible after death (with durations ranging from 20 years to a century or more), often subject to registration or continuing-use requirements that estates must satisfy.
The right is in constant tension with the First Amendment. Genuine news, commentary, biography, and matters of public concern are exempt, and creative works can be protected by the transformative-use test (Comedy III) or the Rogers test, though realistic depictions, like the EA video-game avatars in Hart and Keller, often lose. A separate, underrated defense is copyright preemption under 17 U.S.C. § 301 (In re Jackson).
It is distinct from defamation, false light, appropriation-privacy, trademark, and copyright, even though those claims frequently travel together, and remedies can include compensatory and punitive damages, the defendant's profits, statutory minimums, fees, and injunctions.
Artificial intelligence has thrust this old doctrine to the center of modern law. Tennessee's ELVIS Act (2024), California's 2024 digital-replica laws, and New York's digital-replica protections, plus the proposed federal NO FAKES Act, are reshaping the field around voice cloning and deepfakes. Watch this space closely.

Frequently Asked Questions

Do I have to be famous to have a right of publicity? No. In most states, every living person has a right of publicity regardless of fame. The difference is value: a celebrity's identity is worth more, so the damages are larger and the lawsuits more common. A few states or courts require demonstrable commercial value, but many will presume value once your identity has been used commercially without your consent.

Is there a federal right of publicity? Not as a general matter, no. The right of publicity is governed by a patchwork of state statutes and common law. Celebrities sometimes bring a federal false-endorsement claim under Lanham Act § 43(a) (15 U.S.C. § 1125(a)) when an ad falsely implies they endorse a product, but that is a trademark-style claim, not a true federal publicity right. The proposed NO FAKES Act would create a limited federal right focused on AI digital replicas, but it has not been enacted.

Can a company use a celebrity look-alike or sound-alike to avoid paying for a real endorsement? Generally not, if the imitation is meant to evoke the actual celebrity in a commercial. Midler v. Ford and Waits v. Frito-Lay held that deliberately imitating a star's distinctive voice to sell a product violates the right of publicity, and White v. Samsung extended the principle to any depiction that identifies the person, even a robot in a wig. The "we never used their name" defense usually fails when evoking the celebrity was the whole point, and in most states the company cannot escape by saying the resemblance was unintentional.

Does owning a photograph let me use the person's likeness in an ad? No. The photographer typically owns the copyright in the photo, but the right of publicity belongs to the person depicted. You can license the photo for protected editorial uses, but you generally cannot use it in advertising to imply endorsement without the subject's separate consent. This copyright-versus-publicity distinction trips up many businesses.

Can copyright law ever defeat a right-of-publicity claim? Yes. If the claim is really just an attempt to control the copying of a copyrighted work, like a song or recording, federal copyright preemption (17 U.S.C. § 301) can bar it. In In re Jackson (2d Cir. 2020), 50 Cent's publicity claim against Rick Ross over a remix was preempted because, at bottom, it complained about reproducing a sound recording, copyright's turf. The circuits split on exactly where this line falls, so the result can depend on where the suit is filed.

Can I make a movie, book, or documentary about a real person without buying their "life story rights"? Usually, yes, for the factual, public events of their life, because facts are not anyone's property and recounting them is protected speech (the newsworthiness/First Amendment exemption). Producers nonetheless often buy life-story rights to secure cooperation and exclusive details and to ward off adjacent claims like defamation, false light, or breach of confidence. The legal need and the practical need are different things.

Does the right of publicity survive death? In many states, yes, but it depends entirely on the law of the state where the person was domiciled at death, and durations vary wildly, from about 20 years (Virginia) to 70 (California) to 100 (Indiana), with Tennessee allowing it to continue indefinitely while commercially exploited. Some states recognize no postmortem right at all. Even where the right exists, states like California and New York require the estate to register its claim before it can recover, so the paperwork matters as much as the statute. Because it is property in many states, it can be devised by will or trust, which is why valuable identities should be addressed in an estate plan.

What is the "transformative use" defense? It is a First Amendment defense, adapted from copyright fair use in Comedy III Productions v. Saderup (2001), that protects a creative work if it adds significant new expression rather than merely reproducing the person's likeness. Fanciful or satirical depictions tend to win; literal, realistic recreations, like the college-athlete avatars in Hart and Keller, tend to lose. Not every state uses this test; some apply the Rogers test or a "predominant use" analysis instead.

How does the ELVIS Act change things? Tennessee's ELVIS Act (2024) was the first state law built specifically for AI voice cloning and deepfakes. It expressly adds voice as a protected, property-based interest and creates liability not just for misusing a replica but for distributing the tools primarily designed to make unauthorized replicas. It signals where the law is heading nationwide, and dovetails with California's 2024 digital-replica statutes and the proposed federal NO FAKES Act.

This article is general legal information, not legal advice. The right of publicity varies significantly from state to state and continues to evolve rapidly, especially around artificial intelligence; for advice about your specific situation, consult qualified counsel.