The Legal Framework for Right of Publicity Claims

The right of publicity is the right of an individual to control the commercial use of their name, image, likeness, voice, and other identity elements. It is primarily a state-law right — there is no federal right of publicity statute, although Congress has introduced multiple bills in recent years. As of 2024, approximately 35 states recognize some form of the right of publicity, either by statute or common law.

A right of publicity claim requires proving: (1) the defendant used the plaintiff’s name, image, likeness, or other identity element; (2) the use was for commercial purposes; (3) the use was without consent; and (4) the plaintiff suffered harm. In the AI context, each of these elements presents new and unresolved legal questions.

How AI Systems Generate Content Without Consent

Modern generative AI systems are trained on vast datasets that include celebrity images, recorded voices, and biographical information. These systems can generate photorealistic images of real people, synthesize voice recordings that replicate a person’s voice, and produce written content in a person’s name and style.

In Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988), the Ninth Circuit held that using a voice imitator to simulate Bette Midler’s distinctive voice in a car commercial constituted misappropriation: ‘when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs.’ AI voice cloning performs the same function — and arguably does it more convincingly. The Midler rationale applies directly.

Recent Developments: The Tennessee ELVIS Act and Federal Proposals

In 2024, Tennessee became the first state to enact AI-specific right of publicity legislation: the Ensuring Likeness, Voice, and Image Security Act (ELVIS Act), Tenn. Code Ann. § 47-25-1101 et seq., effective July 1, 2024. The ELVIS Act prohibits the use of AI to produce recordings that replicate a person’s voice without consent and creates civil and criminal liability for violations, extending protection to distributors and platforms that knowingly facilitate unauthorized voice replication.

At the federal level, the NO FAKES Act (Nurture Originals, Foster Art, and Keep Entertainment Safe Act) was introduced in the U.S. Senate in 2023 and reintroduced in 2024. If enacted, it would create a federal right of publicity for digital replicas — AI-generated images, videos, and audio that realistically depict a real person — with a 10-year post-mortem right and a private right of action against both the creator and the hosting platform.

Liability of AI Platform Companies

• Direct liability: If the AI company itself generates and distributes the unauthorized likeness — for example, through a commercial image-generation API — it may be directly liable.
• Secondary liability: AI companies may be liable for contributory infringement if they provide a tool with knowledge that it is being used to generate unauthorized likenesses, by analogy to copyright contributory liability under Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984).
• Section 230 limitation: AI companies have argued that Section 230 of the Communications Decency Act, 47 U.S.C. § 230, immunizes them from liability for user-generated content. Courts are divided on whether this protection extends to AI-generated outputs.

Consent and Licensing: Building a Compliant AI Workflow

For businesses that want to use AI tools to generate content involving real persons, a robust licensing and consent framework is essential. Key elements include:

• Written consent agreements that specifically authorize the creation of digital replicas and AI-generated content
• Clear identification of all permitted uses, platforms, and time periods
• Compensation provisions tied to the scope and duration of the AI use (many performers’ unions, including SAG-AFTRA, now require separate AI-specific consent and compensation)
• Approval rights over AI-generated content before it is published
• Take-down and revocation provisions that require immediate removal of AI-generated content upon request

Revision Legal advises businesses, AI developers, and public figures on right-of-publicity compliance in the age of generative AI. If your business uses AI tools that generate images, audio, or video of real people — or if your likeness has been misappropriated by AI — contact us at revisionlegal.com/contact or visit our Internet Law practice page.

The right of publicity is a general legal concept that includes rights related to name, image, and likeness. For celebrities, name, image, and likeness are valuable commodities that can be licensed for substantial personal revenue. The right of publicity has an important attribute: the ability to prevent others from using a person’s name, image, or likeness without permission. Aside from the potential loss of licensing revenue, unauthorized use might associate a person with false words or actions that might be highly objectionable to the victim.

Matters have gotten much worse lately with the advent of artificial intelligence (“AI”) programs that can quickly create realistic images that mimic real persons. AI programs can even create convincing audio and voices that can fool listeners into thinking a song or speech was made by a real person.

On the one hand, AI generative programs can serve legitimate commercial and personal interests. Computer generated images are common now in movies and television shows. The AI-generated images and sounds have obviously enhanced the content and quality of such media. In such cases, the use of images and likenesses has been authorized. But, as noted above, the unauthorized use of AI-generated images and sound is a cause for concern.

In most states, victims of unauthorized use of their image or likeness can bring a lawsuit for misappropriation of likeness. Typically, several legal elements must be proven. For example, in California, four elements must be proven:

• The use of an individual’s name or likeness or some unique defining characteristic
• Use is for commercial purposes
• Done without consent or authorization and
• That caused damage or injury to the victim

There are some States without a statute protecting name and likeness. This is also true at the federal level. But, for those states and at the federal level, as a substitute, legal cases can be filed for false/misleading advertising and for deceptive business practices.

Future Legal Issues Regarding the Right of Publicity

Without question, AI-generated images and so-called “deep fakes” are prompting many in the legal and intellectual property fields to consider solutions to various problems. For example, there is a push to have a federal statute that protects name, likeness, and image. This is partly driven by the fact that the laws concerning misappropriation of likeness vary markedly from State to State. Some states, for example, have a limited list of what unique characteristics are protected by the right of publicity. Also, about half of the states recognize the cause of action for persons who are deceased. This creates a property right that can be devised in a Last Will and Testament. But even among the states that allow the right for the deceased, there is a great variation in how long the right lasts after death. In the U.S., it can be as short as 20 years after death or as long as 100.

Another legal issue is who can be held liable. Obviously, the person or business using the unauthorized image, sound, or name, but what about the companies that provide the AI programs for public and commercial use?

Contact The Internet Law Attorneys at Revision Legal

For more information, contact the Internet Law Lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.