The Evolution of Right-of-Publicity Laws in the Age of AI

This article explores how state and federal right-of-publicity laws are rapidly adapting to protect actors, musicians, and private citizens from unauthorized artificial intelligence voice and visual clones. Previously governed by a fragmented patchwork of state regulations designed for traditional media, the rise of generative AI has forced lawmakers to reconsider what constitutes a person's identity. From groundbreaking state legislation in entertainment hubs like Tennessee and California to bipartisan federal proposals like the NO FAKES Act, the legal landscape is shifting to grant individuals clear ownership and control over their digital likenesses.

Historically, the right of publicity—the legal right to control the commercial use of one's name, image, likeness, and voice—has been strictly a matter of state law. Because there is no overarching federal statute, protection varies wildly depending on where a person lives or dies.

Furthermore, these traditional laws were written to prevent unauthorized merchandise or false endorsements using photographs and soundbites, not complex algorithms. Under older laws, it was often unclear if an AI model trained on a person’s voice or face violated their rights if the resulting output was a completely new, synthesized creation rather than a direct copy of an existing recording.

State-Level Innovations

Waiting for federal action has proven too slow for states with massive entertainment industries. Several states have recently updated their right-of-publicity statutes to explicitly address generative AI and digital replicas.

Tennessee led the charge in March 2024 by passing the Ensuring Likeness Voice and Image Security (ELVIS) Act. Previously, Tennessee law protected names, photographs, and likenesses, but omitted explicit protections for a person's voice. The ELVIS Act closed this loophole, making it illegal to use AI to clone a musician's or individual's voice without consent. It also holds the creators and distributors of the AI tools liable if the technology's primary purpose is to produce unauthorized clones.

California followed suit in late 2024 by passing a pair of landmark bills backed by the actors' union, SAG-AFTRA. Assembly Bill 2602 requires that any contract involving the creation or use of a performer’s AI digital replica must be explicitly defined, and the performer must be represented by legal counsel or a labor union for the agreement to be valid. Meanwhile, Assembly Bill 1836 prohibits the commercial use of digital replicas of deceased personalities without the consent of their estates, stopping studios from reviving dead actors or musicians via AI without permission.

Pushing for Federal Uniformity

Because the internet has no borders, state laws have limitations. An AI clone can be generated in a state with weak laws and distributed globally in seconds. To solve this, federal lawmakers have introduced bipartisan legislation to create a unified national standard.

The most prominent federal proposal is the Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act. If passed, this bill would establish the first federal right of publicity specifically targeting digital replicas. The NO FAKES Act grants every individual—not just celebrities—the exclusive right to authorize the use of their voice and visual likeness in a digital replica.

Crucially, this federal right would apply to both living and deceased individuals, giving estates post-mortem control for up to 70 years. The bill also includes safe harbors for First Amendment protections, allowing unauthorized AI replicas to be used in news reporting, documentaries, parody, and historical works, provided the digital replica is not used to falsely depict the person doing something in a way that causes harm.

Protecting Private Citizens

While celebrities and musicians have the financial resources to fight unauthorized commercial use, private citizens face different, often more malicious threats from AI cloning, such as non-consensual deepfake pornography, financial scams, and cyberbullying.

Because traditional right-of-publicity laws usually require proof of "commercial exploitation" (meaning someone made money off the likeness), everyday citizens often could not use them to stop malicious AI clones. Evolving laws are removing this commercial requirement. The federal DEFIANCE Act, alongside various new state laws, focuses on granting private citizens the right to sue creators of non-consensual, sexually explicit AI deepfakes for severe financial damages, regardless of whether the creator intended to make a profit.

Additionally, the Federal Trade Commission (FTC) has stepped in to protect everyday consumers by finalizing rules that classify AI-generated voice cloning used in scams as an unfair or deceptive trade practice, triggering heavy civil penalties for violators.