Social media influencers are online personalities with multitudes of followers on various social media platforms like YouTube, X, TikTok, Instagram, and more. Successful influencers are hired for marketing purposes in the hopes that the influencer’s endorsement or use of a product will result in brand awareness, loyalty, and increased sales/revenue. To use the fashionable marketing terms, influencers act as “brand ambassadors.”

Nearly all social media influencers are real human beings, but there are some influencers who are virtual. Virtual influencers are digitally created and are generally operated by an artificial-intelligence program. So far, no virtual influencer is purely automated. That is, all of them require some level of human input and control.

For businesses, there are many advantages to employing a virtual influencer over using a human one. These include:

• Full control over the message presented by the influencer
• Full control over how the influencer looks, where the influencer “goes,” what it “does,” etc.
• Complete loyalty, particularly from company-created virtual influencers
• 24/7 availability and focus on the brand
• Elimination of any possible public scandal (since virtual influences have no life or off-internet existence)
• No concern for false authenticity since, when operated correctly, consumers know the influencer and the content is staged
• More effective than human influencers — according to some studies

Are virtual influencers legal?

In general, the use of virtual influencers is perfectly legal. The use of fictional characters and creations in advertising has been common for centuries. The main area where legality becomes an issue is where the virtual influencer is depicted to look like a real human being and is either presented as a real human or there is no disclosure that the virtual influencer is computer-generated.

Essentially, the issue is false, fraudulent, and misleading advertising. In 2025, computer graphics and software will be good enough to create virtual influencers that look and act real. Indeed, it often takes a skeptical attitude and a close examination to discover the falsity.

Under existing State and federal laws, false, fraudulent, or misleading advertising is not allowed. Civil and criminal penalties can be imposed for businesses that engage in such activities. Further, false advertising is also considered a deceptive business practice. Deceptive business practices are also not allowed under State and federal laws.

Virtual influencers that look like cartoons or are otherwise clearly not human do not present these legal issues (as long as the other aspects of the marketing are not false and/or fraudulent). This is because there is no danger that consumers will be misled by a non-human-looking virtual influencer. The theory is that humans are willing to follow the advice and counsel of others whom they have come to like and trust. It is that trust that businesses want to tap when they use influencers for marketing campaigns. Using a real-looking virtual influencer is misleading and deceptive if there is no full, complete, and prominent disclosure of the fact that the influencer is virtual.

The FTC’s 2023 Endorsement Guidelines and Virtual Influencers

The FTC updated its Guides Concerning the Use of Endorsements and Testimonials in Advertising in 2023, specifically to address virtual influencers and AI-generated endorsement content. The updated Guides state that if a company uses a virtual influencer it controls to endorse its own products, it must clearly disclose that the endorser is under the company’s control and is not an independent third party. The disclosure must be clear and conspicuous — appearing before or alongside the endorsement, not buried in captions or linked privacy policies.

The FTC’s concern is straightforward: the persuasive power of an influencer endorsement rests on the consumer’s perception that the endorser is an independent person sharing a genuine opinion. A virtual influencer controlled by the brand being endorsed is not providing an independent opinion — the brand is essentially talking to itself. Without adequate disclosure, this is deceptive advertising. Civil penalties under the FTC Act can reach tens of thousands of dollars per violation per day.

Intellectual Property Ownership of Virtual Influencer Content

Virtual influencers raise complex intellectual property questions that have not been fully resolved by courts or Congress. Key issues include:

Copyright in AI-Generated Content

The U.S. Copyright Office has taken the position — affirmed in Thaler v. Perlmutter, No. 22-1564 (D.D.C. 2023) — that AI-generated content without human authorship is not eligible for copyright protection. The extent of human creativity involved in generating the content determines whether copyright attaches. For virtual influencer content, this means that purely algorithmically generated posts, images, and videos may be unprotectable, while content with substantial human creative input may qualify. Businesses deploying virtual influencers should structure their workflows to maximize the human creative contribution to protected content.

Right of Publicity Conflicts

Virtual influencers designed to look like real people — celebrities, public figures, or private individuals — can violate right of publicity laws. Every state in the U.S. provides some form of right of publicity protection preventing the commercial use of a person’s name, image, or likeness without consent. Creating a virtual influencer that resembles a real person without that person’s consent is a legally risky practice. Several right of publicity lawsuits involving AI-generated likenesses of celebrities are working their way through the courts.

Non-Disclosure and Impersonation: The Regulatory Red Lines

Two practices involving virtual influencers are clearly illegal under existing federal and state law:

Undisclosed AI identity: Presenting a virtual influencer as a real human being without any disclosure is false advertising under Section 5 of the FTC Act and potentially fraudulent under state consumer protection laws. The FTC has specifically warned that failing to disclose the AI nature of an influencer is deceptive when consumers would materially want to know.

Impersonation of real people: Using a virtual influencer to impersonate a real person — saying things they never said, endorsing products they never endorsed, or appearing in situations designed to be mistaken for genuine human activity — can create liability under false light invasion of privacy, defamation, right of publicity, and Lanham Act false endorsement theories.

International Legal Framework for Virtual Influencers

The European Union’s Artificial Intelligence Act, which entered into force in 2024, specifically regulates AI systems that interact with humans in ways that could influence behavior or decisions — a category that arguably includes virtual influencers. The EU AI Act requires clear disclosure when consumers are interacting with AI systems. The UK Advertising Standards Authority has issued guidance requiring disclosure of AI-generated influencer content. Brands operating in international markets must navigate a patchwork of disclosure requirements.

Practical Legal Checklist for Businesses Using Virtual Influencers

• Clearly disclose the virtual/AI nature of the influencer in all content where the disclosure would be material to consumers
• Ensure your virtual influencer does not resemble any real person closely enough to create right of publicity exposure
• Review all AI-generated content for compliance with FTC endorsement disclosure requirements
• Establish contracts with all human contributors to virtual influencer content establishing clear IP ownership
• Monitor for unauthorized use of your virtual influencer’s likeness by third parties
• Stay current with evolving FTC and state advertising regulations governing AI-generated content

Contact Revision Legal

If you have questions about internet and advertising law, the experienced attorneys at Revision Legal can help. We represent businesses, entrepreneurs, and individuals across the country. Contact us through the form on this page, visit our internet and advertising law practice page, or call us at (855) 473-8474.