Some people are famous like politicians, film and music celebrities and sports stars. Because they are famous, they are recognized by their fans and some people are so famous that they are literally recognized by everyone. Examples are people like actress Marilyn Monroe and basketball great Michael Jordan. Because they are famous, there is great value in using such a person or their likeness in marketing and advertising campaigns. This is true even if the person has died.

However, it is unlawful to use a person’s likeness without their permission. When a person’s likeness is used without lawful authority, this is called misappropriation of likenesses and a violation of a person’ right of publicity. Misappropriation is a legal term that basically means “theft.” There are many ways that misappropriation of likeness can occur. A basic example is using a person’s likeness as an endorsement for a product. But misappropriation of likeness can occur with the use of some particular attribute of a person like a unique tattoo.

For example, rapper Cardi B was sued a couple of years ago by Kevin Brophy, Jr., who has a uniquely identifying tattoo on his back. Brophy sued alleging that Cardi B used his distinctive back tattoo on the cover of one of her music mix tapes. See media report here. As reported, Brophy alleges that his back tattoo was photoshopped onto someone else’s body and the pose suggested that the person was engaged in sexual behavior. Brophy claimed that his likeness was used without his permission and used in “a misleading, offensive, humiliating and provocatively sexual way.” Similar lawsuits have been filed by sports stars when their likenesses and unique tattoos have been used in sports-themed video and online games.

If someone’s likeness has been misused in this manner, then a lawsuit can be filed claiming misappropriation of likeness. The claim is a form of defamation. To succeed, the person suing must show these legal elements:

• A person’s name or likeness or an identifiable personal attribute (like a tattoo) are used by another
• Without the person’s permission or license
• That use was made for the benefit of the other person/business — most often for financial gain
• The unauthorized use is causally connected to
• Some injury or damage — such a economic loss or damage to reputation

There are some exceptions to unauthorized use of a person’s likeness such as for news and media reporting. Likewise, “permission” can be implicit as, for example, when celebrities pose for photographs at media events and/or on the “red carpet” before an awards show. But implicit permission also has implicit limits (such as the likenesses can only be used with respect to the event in question).

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The Right of Publicity vs. the Right of Privacy: Understanding the Distinction

Misappropriation of likeness claims can arise under two distinct legal theories that are frequently confused: the right of publicity and the right of privacy. Although both protect against unauthorized use of a person’s identity, they serve different interests and carry different legal requirements. The right of privacy — specifically the “appropriation” branch of privacy torts articulated in the Restatement (Second) of Torts § 652C — protects the dignitary and emotional interest in not having one’s identity exploited. It does not require that the person be famous; it protects the average person against having their name or likeness used for commercial purposes without consent.

The right of publicity, by contrast, protects the economic interest in controlling the commercial value of one’s identity. It is most relevant when the person whose likeness is used has a recognizable commercial value — whether a celebrity, an athlete, a well-known business figure, or increasingly, a social media influencer with a substantial following. The distinction matters because the remedies differ: a right of privacy claim may yield damages for emotional distress, while a right of publicity claim can yield damages measured by the fair market value of an authorized license — often a much larger number for commercially valuable identities.

Postmortem Rights: What Happens After Death

The right of publicity survives death in approximately 22 states that have enacted postmortem right of publicity statutes. The duration and scope of these postmortem rights vary significantly. California’s postmortem right of publicity lasts 70 years after death under Civil Code § 3344.1 and can be exercised by the deceased person’s successors in interest or heirs. Indiana protects postmortem rights for 100 years. Tennessee’s Protection of Personal Rights Act protects deceased personalities indefinitely in some circumstances. New York, by contrast, does not have a general postmortem right of publicity statute, though it has enacted specific protections for deceased personalities in some commercial contexts.

Postmortem right of publicity law has significant commercial implications in the entertainment, sports, and licensing industries. The estates of deceased celebrities like Marilyn Monroe, Elvis Presley, and Michael Jackson have generated substantial licensing revenue by controlling the commercial use of their likenesses. Unauthorized use of a deceased celebrity’s likeness in advertising, merchandise, or digital media can expose a business to substantial liability to the estate or successors who hold the postmortem rights. Before using any historical figure’s likeness in commercial content, a business should have counsel assess whether postmortem rights apply in the relevant jurisdictions.

Defenses to Misappropriation of Likeness Claims

Several legal defenses may be available to parties accused of misappropriation of likeness. The most significant include:

• Consent: Express written consent from the subject is a complete defense. Implied consent can also arise from context — for example, when a celebrity voluntarily poses for photographs at a media event, the photographs may be used for news reporting purposes without additional consent. However, implied consent has limits; posing for a photograph at a public event does not authorize the use of that photograph in paid advertising.
• First Amendment / transformative use: Creative works that incorporate a person’s likeness — including paintings, sculptures, video games, and films — may be protected by the First Amendment if the work adds sufficient creative transformation beyond a mere reproduction of the likeness. Courts apply the transformative use test established in Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001), to evaluate whether the expressive value of the work is sufficient to overcome the person’s right of publicity.
• News and commentary exception: The use of a person’s likeness in news reporting, documentary journalism, or commentary on matters of public concern is generally protected under the First Amendment. This exception covers not only traditional news media but also online journalism, podcasts, and social media commentary on public affairs.

AI, Deepfakes, and Emerging Likeness Law

Advances in artificial intelligence have dramatically lowered the cost and technical barrier to creating realistic synthetic media that depicts real people saying or doing things they never did. Deepfake video, AI voice cloning, and AI-generated still images all implicate misappropriation of likeness law. Several states — including California, Texas, Virginia, and New York — have enacted statutes specifically targeting deepfakes used for sexual content, election interference, or commercial misappropriation. The underlying legal analysis under right of publicity and misappropriation of likeness law applies with equal force to AI-generated content: if the technology is used to create a realistic depiction of a real person’s likeness for commercial advantage without authorization, the claim is the same whether the content was created by a photographer, an illustrator, or a generative AI system.

Contact Revision Legal for Misappropriation of Likeness Cases

Whether you are a public figure whose likeness has been commercially exploited without authorization, an estate enforcing postmortem rights, or a business seeking clearance advice before using a person’s image or voice in marketing, Revision Legal’s intellectual property attorneys provide experienced, practical counsel. We handle right of publicity and misappropriation of likeness cases and disputes nationwide. Call us at 231-714-0100 or visit our contact page to discuss your situation.