Artificial Intelligence Prompts Renewed Consideration of a Federal Right of Publicity

Artificial Intelligence Prompts Renewed Consideration of a Federal Right of Publicity

Legal Sidebari

Artificial Intelligence Prompts Renewed
Consideration of a Federal Right of Publicity
Updated January 29, 2024
Recent uses of artificial intelligence (AI) to create realistic images, videos, replicas, 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
commercial 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 the 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 Legal Sidebar discusses
questions AI raises for copyright law, while a separate Legal Sidebar and a CRS report discuss 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 another 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 may 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:
• 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
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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 one’s 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
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 other symbols that distinguish one person’s goods from others. The ROP may
overlap with trademarks in cases where 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.
Trademark infringement occurs when someone without authorization uses a trademark in a way that
creates a likelihood of confusion for consumers. The Lanham Act—the federal trademark law—also
establishes a cause of action for “false endorsement,” which provides additional protection that overlaps
with the ROP. 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. In 2023, for instance, actor Tom Hanks
alerted fans that an AI-generated replica of him was being used to advertise a dental plan without his
permission; such scenarios might give rise to both state ROP and Lanham Act false endorsement claims.
State ROP laws can provide broader protection than the Lanham Act, however, as they often prohibit
unauthorized commercial uses of NIL regardless of whether they imply any sponsorship or confuse
consumers. In addition, some courts have held only individuals with “recognizability” (such as Hanks)
may sue for false endorsement, whereas many state laws allow all individuals to sue for ROP violations.

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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 right” to reproduce (copy), perform, display, and distribute copyrighted works and to make
derivative works (adaptations) from them. Generally, a work’s author automatically owns the copyright
but may sell or license it to others. In short, whereas ROP laws prohibit unauthorized uses of another
person’s identity, copyright law prohibits unauthorized uses of another’s creative works. As one
illustration, in January 2024, the estate of comedian George Carlin filed a lawsuit based on an
unauthorized comedy program delivered in an AI-generated imitation of Carlin’s voice. The complaint
claims defendants infringed their copyrights by making copies of Carlin’s works to train the AI model—
similar to other AI-related copyright lawsuits noted in a separate Legal Sidebar—and that defendants
violated Carlin’s ROP under California law by using his NIL to promote the comedy program and other
media.
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 how those
photos are used. These rights may come into conflict, such as when a copyright owner displays
photographs in a way that commercially exploits the NIL 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. 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. In addition, if Congress enacts any new protections for ROP at the
federal level, it may specify under what circumstances copyright would preempt such protections.
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
Recent advances in generative AI systems, which are trained on large volumes of data to generate new
content that may mimic likenesses, voices, or other aspects of real people’s identities, have stimulated
congressional interest. Like the above-noted uses of AI to imitate Tom Hanks and George Carlin, the
examples below illustrate that some AI uses 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.
Simulating an artist’s voice in this manner could make one liable under ROP laws, although these laws

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differ as to whether they cover voice imitations or vocal styles as opposed to the 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 Drake voice imitation. 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 was also a point of contention in last year’s
negotiations for a collective bargaining agreement between the Screen Actors Guild-American Federation
of Television and Radio Artists (SAG-AFTRA)—a union that represents movie, television, and radio
actors—and television and movie studios, including streaming services. SAG-AFTRA expressed concern
that AI could be used to alter or replace actors’ performances without their permission, such as by using
real film recordings to train AI to create “digital replicas” of actors and voice actors. The Memorandum of
Agreement between SAG-AFTRA and studios approved in December 2023 requires studios to obtain
“clear and conspicuous” consent from an actor or background actor to create or use a digital replica of the
actor or to digitally alter the actor’s performance, with certain exceptions. It also requires that the actor’s
consent for use of a digital replica or digital alterations be based on a “reasonably specific description” of
the intended use or alteration. The agreement provides that consent continues after the actor’s death
unless “explicitly limited,” while consent for additional postmortem uses must be obtained from the
actor’s authorized representative or—if a representative cannot be identified or located—from the union.
In January 2024, SAG-AFTRA announced it had also reached an agreement with a voice technology
company regarding voice replicas for video games, while a negotiation to update SAG-AFTRA’s
agreement with video game publishers is reportedly ongoing.
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. Where deepfakes are used to promote products or services—such as the AI replica of
Tom Hanks used in a dental plan ad—they may also constitute false endorsement under the Lanham Act.
In addition to these 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 (VAWA 2022) provides a civil claim for nonconsensual disclosure of “intimate visual depictions,”
which might be interpreted to prohibit intimate deepfakes—as might some states’ “revenge porn” laws. A
bill introduced in the House of Representatives in May 2023, the Preventing Deepfakes of Intimate
Images Act, H.R. 3106, would amend VAWA 2022 by creating a separate civil claim for disclosing certain
“intimate digital depictions” without the written consent of the depicted individual, as well as providing
criminal liability for certain actual or threatened disclosures. 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, while excluding news, commentary, satires, and parodies from liability.
Google announced that, as of mid-November 2023, verified election advertisers on its platform “must
prominently disclose when their ads contain synthetic content that inauthentically depicts real or realistic-
looking people or events.”
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

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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.
Another Legal Sidebar discusses the application of Section 230 to generative AI more broadly.
Considerations for Congress
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 that Congress should leave ROP
protection to the states on federalism grounds. If Congress decides to craft federal ROP legislation, it
might consider the scope of the ROP protections it seeks to enact, the effect of those enactments on state
ROP laws, and constitutional authorities and limitations on Congress’s power to enact ROP protections.
As noted below, some Members have proposed legislation that would prohibit certain unauthorized uses
of digital replicas or depictions of individuals while leaving state ROP laws in place.
Scope and Preemptive Effect of Federal ROP Legislation
Congress has many options to determine how broadly to protect the ROP via possible federal legislation.
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 uses of NIL or only to specific uses. For example, a discussion draft circulated in October
2023 by four Senators, the NO FAKES Act of 2023, would create a civil action for producing, publishing,
distributing, or transmitting a “digital replica” of a real person’s image, voice, or likeness without consent,
with some exceptions. A bill introduced in the House of Representatives in January 2024, the No AI
FRAUD Act, H.R. 6943, would create a civil action for certain conduct involving “digital depictions,”
“personalized cloning services,” and “digital voice replicas” of real people without their consent. These
proposals differ as to how long postmortem rights may last, among other differences.
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. The NO FAKES Act of 2023 and
No AI FRAUD Act, for instance, state that they do not preempt other ROP protections.
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

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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
than courts might hold is constitutionally required. To limit the reach of ROP claims, Congress could
consider enacting statutory exceptions to ROP liability, possibly similar to the “fair use” defenses 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
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as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
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