Legal Sidebari
Artificial Intelligence Prompts Renewed
Consideration of a Federal Right of Publicity
September 29, 2023
Recent uses of artificial intelligence (AI) to create realistic images, videos, or voice simulations of real
people have prompted some Members of Congress to call for federal legislation to protect the “right of
publicity” (or ROP, for short). The ROP is often defined as the right to prevent unauthorized uses of one’s
name, image, or likeness (NIL) or other aspects of one’s identity (such as one’s voice). The ROP is not
comprehensively protected by current federal laws.
This Legal Sidebar surveys existing state-level legal protections for ROP, explains how they intersect with
federal laws regarding intellectual property (IP), describes potential ROP concerns raised by AI, and
presents constitutional and other legal considerations for Congress. Another CRS report and Legal
Sidebar discuss a separate set of legal issues relating to restrictions on the ability of college student-
athletes to receive compensation for uses of their NIL.
State Right of Publicity Laws
The ROP is protected in some form by the laws of most U.S. states, and the number of states that
recognize this right has expanded over the past several decades. One study found that 35 states recognized
the ROP as of 2020. ROP laws generally create a private right of action for the unauthorized commercial
use of a person’s NIL. For example, if a manufacturer uses a famous athlete’s name or face in a TV
commercial without her permission, the athlete could sue the manufacturer for violating her ROP, and a
court could order the manufacturer to pay damages and stop showing the commercial.
What constitutes an unauthorized commercial use of NIL can vary from state to state. Some states’ ROP
laws potentially apply only to advertising, while others more broadly apply to any use that commercially
benefits the user, such as video game or comic book characters based on real people.
Other notable differences between the ROP laws of various states concern questions such as the
following:
• Is the ROP protected by statute, common law, or both? Twenty-five states have
enacted statutes protecting the ROP. In some of these states, including California, the
ROP is protected by both statutes and common law (law derived from court opinions). In
Congressional Research Service
https://crsreports.congress.gov
LSB11052
CRS Legal Sidebar
Prepared for Members and
Committees of Congress
Congressional Research Service
2
some other states, including Delaware, the ROP is protected by common law only,
sometimes as an application of a common law “right of privacy.”
• What parts of a person’s identity does the ROP protect? The ROP often only protects
a person’s NIL, voice, and signature. In some states, the ROP also includes someone’s
“distinctive appearance, gestures, or mannerisms.” Courts have construed certain states’
ROP laws to protect more abstract aspects of personal identity, finding defendants liable
for using an image of a famous driver’s race car, a blonde robot performing Vanna
White’s role on a game show, or the catch phrase “here’s Johnny.”
• Do all individuals enjoy the ROP? State laws vary as to whether all persons or only
those with “commercially valuable” NIL (such as celebrities) may assert ROP claims.
• Does the ROP survive a person’s death? In some states, the ROP is descendible,
meaning it can be asserted by heirs after a person dies. States that recognize a descendible
(or postmortem) ROP differ as to their duration, with postmortem rights lasting 20 years
in Virginia, 70 years in California, and 100 years in Oklahoma, for instance. Under
Tennessee law, postmortem ROP may last indefinitely. In other states, the ROP is not
descendible, or else courts have not resolved the issue.
Often, the law of the state in which a person is domiciled—or, where they were domiciled when they
died—governs their ROP. Indiana’s ROP statute, however, allows suit “regardless of a personality’s
domicile” for infringing materials “disseminated within Indiana.” This law may allow non-Indiana
plaintiffs to sue for infringing materials that are made available in Indiana via television or the internet.
Intersection of Right of Publicity and Federal IP Laws
Although the ROP is distinct from the forms of IP already protected by federal law, it is related in some
ways to trademarks and copyrights. If Congress chooses to regulate the ROP via federal law, it may wish
to consider how best to harmonize the ROP with existing trademark and copyright laws.
Trademarks
While the ROP generally protects commercial uses of a person’s identity, trademarks protect commercial
uses of words, names, and symbols that distinguish one person’s goods from others. The ROP may
overlap with trademarks in cases when aspects of a person’s NIL can be trademarked. A person’s name,
for instance, may be trademarked if it acquires a distinctive meaning and is used commercially to identify
goods or services (e.g., McDonald’s). The ROP may be seen as serving a similar function to trademarks,
although some scholars have criticized the theoretical foundations and expansion of the ROP.
The Lanham Act—the federal trademark law—establishes a cause of action for “false endorsement,”
which provides some protection for NIL that is not trademarked. False endorsement occurs when a
person’s identity is used in a way that is likely to confuse consumers into believing that the person
recommends a product. False endorsement is narrower than many state ROP laws, which often prohibit
unauthorized commercial uses of NIL regardless of whether they imply any sponsorship or are likely to
confuse consumers. In addition, some courts have held only individuals with “recognizability” may sue
for false endorsement, whereas many state laws allow all individuals to sue for ROP violations.
Copyrights
Copyrights protect original works of authorship that are “fixed” (i.e., recorded) in a “tangible medium,”
including books, paintings, music recordings, and films. The Copyright Act gives copyright owners the
“exclusive rights” to reproduce (copy), perform, display, and distribute copyrighted works and to make
Congressional Research Service
3
derivative works (adaptations) from them. Thus, whereas ROP laws prohibit unauthorized uses of a
person’s identity, copyright law prohibits unauthorized uses of creative works. Generally, a work’s author
automatically owns the copyright but may sell or license it to others.
The ROP intersects with copyright law inasmuch as both fictional and nonfictional copyrighted works
often include the NIL of real people, including descriptions, portrayals, recordings, or performances of
those people. For example, people depicted in photographs often do not hold the copyright, since the
photographer is usually considered the author, but they may have ROP interests implicated by uses of
those photos. These rights may come into conflict, as when a copyright owner displays photographs in a
way that may violate the ROP of people shown in the photographs.
Section 301 of the Copyright Act provides that the Copyright Act preempts (supersedes) any state law
rights that are “equivalent to” a copyright holder’s exclusive rights, but some commentators argue courts
have inconsistently applied Section 301 in cases where copyrights conflict with the ROP. Some courts
have dismissed lawsuits that allege copyright holders violated the ROP by exercising their exclusive
rights under the Copyright Act. For instance, in 2017, one court held that Section 301 preempted a suit
claiming the sale of photographs of NCAA athletes violated the athletes’ ROP. Other courts have held that
Section 301 does not preempt ROP claims based on advertising. For example, one court held that a sports
announcer’s ROP claim was not preempted where an excerpt of his voice from a copyrighted broadcast
was used in a commercial for a video game. Congress could clarify the scope of copyright preemption of
ROP claims by amending Section 301.
ROP laws can protect commercial interests in live performances, which cannot be copyrighted unless they
are “fixed” (e.g., filmed). In the Supreme Court’s only ROP case to date, for instance, a performer sued a
television company for broadcasting his “human cannonball” act, undermining ticket sales for the act. The
Supreme Court held that the First Amendment did not prevent the performer from asserting a ROP claim
against the company. As an exception to the rule that live performances have no copyright protection, in
1994 Congress provided criminal and civil liability for recording and distributing live music
performances without permission, although some courts have questioned these laws’ constitutionality.
Right of Publicity Concerns Regarding AI
The ability of certain AI programs to mimic likenesses, voices, or other aspects of real people’s identities
has stimulated congressional interest in the ROP and how it might be used to redress some objectionable
uses of AI—not unlike how AI has raised new questions about copyright law. As the examples below
illustrate, some AI uses may raise concerns under both ROP laws and myriad other laws.
One example of AI’s capability to imitate voices was an AI-generated song called “Heart on My Sleeve,”
which sounded like it was sung by the artist Drake and was heard by millions of listeners in 2023. As one
commentator notes, simulating an artist’s voice in this manner may make one liable under some ROP
laws, although these laws may differ as to whether they cover voice imitations or vocal styles as opposed
to an artist’s actual voice. Voice imitations are not, however, prohibited by copyright laws. For example,
the alleged copyright violation that caused YouTube to remove “Heart on My Sleeve”—namely, that it
sampled another recording without permission—was unrelated to the imitation of Drake’s voice. In
August 2023, Google and Universal Music were in discussions to license artists’ melodies and voices for
AI-generated songs.
The potential for AI to replicate both voices and likenesses has also emerged as a point of contention in
negotiations for a collective bargaining agreement between a union that represents movie, television, and
radio actors, the Screen Actors Guild-American Federation of Television and Radio Artists (SAG-
AFTRA), and television and movie studios (including streaming services). SAG-AFTRA expressed
concern that AI could be used to alter actors’ performances without their permission and to replace actors
Congressional Research Service
4
altogether, possibly by using real film recordings to train AI to create virtual performances by those
actors. Some states’ ROP laws might allow actors to challenge such uses of AI, which arguably diminish
the actors’ commercial value. SAG-AFTRA and the studios, however, could potentially supersede ROP
laws by agreeing to contract provisions governing these uses of AI. SAG-AFTRA asserts that its members
should be able to provide “informed consent” and receive “fair compensation” for the use of actors’
images and performance to train AI models used by studios. The studios, in turn, assert that they agree
that “use of a performer’s likeness to generate a new performance requires consent and compensation.”
Commentators have also raised concern with deceptive AI-generated or AI-altered content known as
“deepfakes,” including some videos with sexually explicit content and others meant to denigrate public
officials. To the extent this content includes real people’s NIL and is used commercially, ROP laws might
provide a remedy. Besides ROP laws, some states have enacted laws prohibiting sexually explicit
deepfakes, with California and New York giving victims a civil claim and Georgia and Virginia imposing
criminal liability. In addition, Section 1309 of the federal Violence Against Women Act Reauthorization
Act of 2022 provides a civil claim for nonconsensual disclosure of “intimate visual depictions,” which
might be interpreted to prohibit intimate deepfakes—as might some “revenge porn” laws enacted by
many states. Deepfakes may also give rise to liability under state defamation laws where a party uses
them to communicate reputation-damaging falsehoods about a person with a requisite degree of fault.
Regarding the use of AI in political advertisements, some proposed legislation would prohibit deepfakes
or require disclaimers for them in federal campaigns, although such proposals may raise First Amendment
concerns. The Protect Elections from Deceptive AI Act, S. 2770 (118th Cong.), for instance, would ban the
use of AI to generate materially deceptive content falsely depicting federal candidates in political ads to
influence federal elections, and would exclude news, commentary, satires, and parodies from liability.
Some technology companies will require disclaimers of AI in political advertisements on their platforms.
Another concern some commentators raise is that AI-generated material might be falsely attributed to real
persons without their permission. One writer who focuses on the publishing industry, for instance, found
that books apparently generated by AI were being sold under her name on Amazon. Although the
company ultimately removed these titles, the writer claimed that her “initial infringement claim with
Amazon went nowhere,” since her name was not trademarked and the books did not infringe existing
copyrights. As she noted, however, this scenario might give rise to claims under state ROP laws as well as
the Lanham Act. In addition, the Federal Trade Commission (FTC) states that “books sold as if authored
by humans but in fact reflecting the output of [AI]” violate the FTC Act and may result in civil fines.
It is unclear how Section 230 of the Communications Act of 1934 might apply when ROP-infringing
content from a third party, including content made with AI, is disseminated through social media and
other interactive computer services. Although the law generally bars any lawsuits that would hold online
service providers and users liable for third party content, there is an exception allowing lawsuits under
“any law pertaining to intellectual property.” Courts differ as to whether state ROP laws and the Lanham
Act’s prohibition on false endorsement are laws “pertaining to” IP within the meaning of Section 230.
Considerations for Congress
State ROP laws protect the ROP to varying degrees, while other laws provide protection against specific
uses of NIL. Some commentators have called for federal ROP legislation to provide more uniform and
predictable protection for the ROP in the United States. Others have argued, on federalism grounds, that
Congress should continue to let each state determine whether and how to protect the ROP. If Congress
wishes to craft federal ROP legislation, it might consider the scope of the ROP protections it wishes to
enact, the effect of those enactments on existing state ROP laws, and constitutional authorities and
limitations on Congress’s power to enact ROP protections. (As discussed in this CRS report, there is a
Congressional Research Service
5
separate debate regarding whether Congress should enact legislation specifically regarding restrictions on
NIL compensation for college athletes.)
Scope and Preemptive Effect of Federal ROP Legislation
If Congress considers legislation protecting the ROP, it would face determining how broadly to extend
that protection. Federal ROP legislation might specify, for instance, which aspects of a person’s identity
are protected, whether individuals without a commercially valuable identity may assert the ROP, and how
long—if at all—the ROP survives a person’s death. Legislation might also specify whether a federal ROP
applies broadly to all commercial uses of NIL or only to specific uses such as advertising, merchandizing,
and/or performances. Federal ROP legislation may also specify how to resolve any conflicts between the
ROP and existing federal trademark and copyright laws.
Additionally, Congress may consider whether federal ROP legislation should preempt or leave in place
existing state ROP laws. Existing federal IP laws provide examples of both approaches, as the Patent Act
and Copyright Act largely preempt state laws while the Lanham Act and Defend Trade Secrets Act do not.
Some commentators argue Congress should preempt state ROP laws to promote greater uniformity and
predictability. Alternatively, Congress could create a minimum level of ROP protection under federal law,
letting individual states provide greater ROP protections if they wish.
Constitutional Authority and Limitations for Federal ROP Legislation
While Congress has express constitutional authority to enact patent and copyright laws, its power to
protect other IP, such as trademarks and trade secrets, derives from its authority to regulate interstate
commerce. Some have argued the Commerce Clause of the Constitution gives Congress the power to
establish a federal ROP and preempt state ROP laws. ROP laws would likely fall within Congress’s
commerce authority so long as they regulate uses of NIL in or substantially affecting interstate commerce.
ROP laws create civil liability for certain NIL-containing speech—potentially including media such as
books, films, and video games—and therefore raise questions about defendants’ First Amendment rights.
Some scholars argue that courts apply inconsistent tests to resolve clashes between the ROP and First
Amendment protections. The Ninth Circuit, for example, held that the First Amendment did not shield the
use of football players’ avatars in a video game from a ROP lawsuit, since the avatars were not a
“transformative use” of the players’ identity under a test first articulated by the Supreme Court of
California. The Ninth Circuit reached a different result in a Lanham Act false endorsement case involving
another football player’s avatar, holding that the use of the plaintiff’s NIL was “artistically relevant” to
the video game and therefore protected under a test developed by the Second Circuit. In a third case, the
Ninth Circuit held that the film portrayal of an army veteran was not subject to the transformative use test
because, unlike the football players, the veteran had not built up “a marketable performance or identity.”
The court therefore applied strict scrutiny, a standard requiring that a law be narrowly tailored to serve a
compelling governmental interest. The court held that application of California’s ROP statute would
violate the First Amendment because the plaintiff could not demonstrate a “compelling state interest,”
given his lack of a marketable identity.
Congress might have more latitude to enact ROP laws aimed at commercial speech, such as advertising,
which merely proposes a commercial transaction or relates solely to the speaker’s and the audience’s
economic interests. Courts typically subject commercial speech regulations to intermediate scrutiny, a less
stringent standard than strict scrutiny that requires the government to show that its regulation directly
advances a substantial government interest and is not broader than necessary to serve that interest.
If Congress enacts federal protections for the ROP, it may seek to mitigate the need for judicial resolution
of conflicts between the ROP and the First Amendment, or it may try to give wider latitude to free speech
Congressional Research Service
6
than courts might hold is constitutionally required. To limit the reach of ROP claims, Congress could
consider enacting statutory “fair use” defenses to ROP claims like those in the Copyright Act and the
Lanham Act. Congress could also consider limiting federal ROP protections to commercial speech.
Author Information
Christopher T. Zirpoli
Legislative Attorney
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.
LSB11052 · VERSION 1 · NEW