By Zain Almaliki
On its face, a person’s right to control and profit from the commercial use of their name, image, likeness, voice, or other distinctive attributes, also known as the right of publicity, appears to be a right reserved for public figures and celebrities. However, this right is extended to everyone, including those of us whose faces are not plastered on billboards or magazine ads. Your right to prevent the unauthorized commercial use of your name, image, likeness, and voice is more relevant than ever with the advent of artificial intelligence and its image and likeness generation capabilities.
This Article will first explain what the right of publicity is; second, examine the different legal standards and statutes that apply across jurisdictions, with a particular focus on California and New York; third, address the postmortem right of publicity; and finally, discuss recent developments in right of publicity law, particularly in response to artificial intelligence, such as the Ensuring Likeness, Voice, and Image Security (ELVIS) Act signed into law in Tennessee.
I. What Is Protected?
California recognizes both statutory and common law protections for the right of publicity. The statutory right, codified in California Civil Code section 3344, explicitly extends protections to a person’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent.[1]
The seminal case recognizing common-law protection in an individual’s voice involved Grammy-winning artist Bette Midler. In Midler v. Ford Motor Co., Ford Motor Company aired a television advertisement featuring a Bette Midler sound-alike, who had previously served as a backup singer for Midler, singing “Do You Want to Dance,” one of Midler’s songs.[2] Ford did not mention Midler by name in the commercial and did not use her image in connection with the product.[3] However, Ford had initially hired Midler to perform in the advertisement, but she explicitly refused, citing her personal policy against appearing in commercials.[4] Despite this refusal, Ford continued with the project and instructed the sound-alike to “sound as much as possible like the Bette Midler record.”[5]
The Ninth Circuit held that when the distinctive voice of a professional singer is widely known and deliberately imitated for the purpose of selling a product, the advertiser has appropriated something that does not belong to it and has committed a tort under California law.[6]
In New York, the right of publicity is exclusively statutory, encompassed within Civil Rights Law sections 50 and 51, with no independent common law right. Section 50 makes it a misdemeanor to use “the name, portrait, picture, likeness, or voice of any living person” for advertising or trade purposes without written consent.[7] Section 51 provides a civil cause of action, allowing any person whose “name, portrait, picture, likeness or voice is used within this state for advertising purposes or for the purposes of trade without the written consent” to maintain an equitable action and recover damages.[8]
II. How to Bring a Cause of Action
As mentioned above, California recognizes both a common law right of publicity and a statutory cause of action under Civil Code section 3344. In order to bring a common law cause of action for a right of publicity violation, the plaintiff must show: (1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of the plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.[9]
The statutory claim under Civil Code section 3344 builds on these elements by also requiring the plaintiff to demonstrate “a knowing use by the defendant as well as a direct connection between the alleged use and the commercial purpose.”[10] Any person found liable for violating section 3344 shall be liable for all damages sustained by the injured party.[11] The violator shall also be liable for the greater of $750 or actual damages, plus any profits from the unauthorized use not already accounted for in actual damages.[12] The injured party need only prove gross revenue attributable to the use while the violator bears the burden of proving deductible expenses.[13] Punitive damages may also be awarded. The prevailing party is entitled to attorney’s fees and costs.[14]
In New York, the right of publicity is recognized exclusively under the state’s right of privacy statutes, which prohibit the commercial use of a person’s name, portrait, or likeness without written consent.[15] The essential elements are: (1) use of the plaintiff’s identity; (2) for advertising or trade purposes; and (3) absence of written permission.[16] New York courts reject common-law claims, recognizing the right of publicity only statutorily.[17] New York allows a plaintiff in a civil suit to prevent and restrain the unauthorized use; the plaintiff may also recover damages for any injuries sustained, and the jury has the discretion to award exemplary damages.[18]
III. Postmortem Right of Publicity
Now that we understand how the right of publicity may be exercised during an individual’s lifetime, the question becomes: what happens to this right after death?
For many years, postmortem right of publicity was the subject of a significant jurisdictional split between California and New York. California recognizes the right of publicity as a descendible property right through California Civil Code section 3344.1, which protects a “deceased personality’s name, voice, signature, photograph, or likeness” for seventy years following death.[19]
New York, by contrast, long rejected the postmortem right of publicity.[20] That changed on November 30, 2020, when former Governor Andrew Cuomo signed Senate Bill S5959D into law, effectively recognizing a right of publicity for deceased individuals.[21] Under the new legislation, the right is expressly transferable and descendible, allowing it to be conveyed by contract, license, trust, will, or another instrument.[22] This marked a significant departure from New York’s prior approach, which limited the right of publicity to living individuals.[23]
New York’s statutory protection, however, is more limited than California’s. The right applies only to individuals whose right of publicity had commercial value at the time of death or acquired such value because of death.[24] So, if you are a late bloomer like Van Gogh or Vivian Maier, who shot to fame after death, then unfortunately you are out of luck. Additionally, the right extends for only forty years after the death of a “deceased performer,” provided the individual was domiciled in New York at the time of death.[25] Most importantly, however, this bill is not retroactive to deaths before May 29, 2021, meaning that any individual who died prior to the enactment of this bill will not receive postmortem right of publicity.[26]
Overall, twenty-four states, including California, New York, Florida, Hawaii, Nevada, and Texas, recognize a postmortem right of publicity under state common law or statute.[27]
So, if you are someone who believes that your descendants might be able to profit from your right of publicity, it is important to review the right of publicity laws of your state of domicile and ensure that those laws recognize and protect postmortem right of publicity.
IV. Exceptions and Limitations
While both California and New York recognize an individual’s right to limit the unauthorized commercial exploitation of their identity, each jurisdiction also provides exceptions and limitations to the right of publicity. These three exceptions are grounded in the First Amendment’s protections for free speech and matters of public interest. In determining the scope of these limitations, courts will balance proprietary interests against constitutional protections.
California explicitly exempts the “use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign” from the consent requirement imposed by the right of publicity.[28] This “newsworthiness” exception is broad and protects media defendants from liability when covering matters of legitimate public interest, provided there is a reasonable relationship between the use of the individual’s identity and the news or information being conveyed.[29] The exception does not apply, however, when the individual’s identity is used purely for advertising or commercial promotion.[30]
California also recognizes a “transformative use” exception for expressive works that add something new, with a further purpose or different character, and do not merely substitute for the original.[31]
In Comedy III Productions, Inc. v. Gary Saderup, Inc., the plaintiff sued an artist who sold lithographs and T-shirts bearing charcoal drawings of The Three Stooges, a well-known three-person comedy act, alleging violation of their right of publicity.[32] Saderup argued that imposing liability would violate his First Amendment rights.[33]
The California Supreme Court held that when an artist is faced with a right-of-publicity claim, the artist may assert an affirmative defense by showing that the work “contains significant transformative elements or that the value of the work does not derive primarily from the celebrity’s fame.”[34] Applying that test, the court concluded that Saderup’s depictions were not entitled to First Amendment protection because his artistic skill, though evident, was “manifestly subordinated to the overall goal of creating a conventional, literal depiction of The Three Stooges so as to exploit their fame.”[35]
New York recognizes exceptions similar to those in California, with the additional recognition of an “incidental use” exception which states that an unauthorized commercial use of an individual’s identity may be excused from liability if the use is fleeting (brief and non-prominent) and incidental (insignificant to the purpose and subject of the work), such that its commercial impact on the plaintiff’s right of publicity is minimal.[36] Courts determine whether a use is incidental by assessing “the relationship of the references to a particular individual to the main purpose and subject of the work in issue.”[37]
Overall, while the right of publicity grants individuals substantial control over the commercial use of their identities, courts enforce exceptions for news reporting, matters of public interest, transformative expressive works, and incidental uses to ensure that First Amendment values prevail over purely commercial appropriation concerns.
V. AI & the Right of Publicity
To understand the implementation of the ELVIS Act in Tennessee, it is necessary to examine the state’s Personal Rights Protection Act of 1984. Tennessee’s recognition of postmortem right of publicity was strongly motivated by litigation over the unauthorized use of Elvis Presley’s name and likeness following the Tennessee icon’s death in 1977.[38]
The 1984 Personal Rights Protection Act was designed to ensure that the right of publicity does not lapse upon an individual’s death, but instead passes to the individual’s heirs and successors.[39]
Building on the 1984 Act’s efforts to protect performers’ right of publicity, the ELVIS Act represents the first state-level effort to directly address the threats posed by artificial intelligence to the right of publicity. Advances in AI have enabled the creation of digital and synthetic replicas that can simulate a person’s voice, likeness, or performance without consent.[40] High-profile artists such as Drake and Luke Bryan have already been victimized by this technology, including through the viral release of the AI-generated fake Drake song “Heart on My Sleeve.”[41]
The ELVIS Act creates secondary liability for any person or company that “publishes, performs, distributes, transmits, or otherwise makes available to the public an individual’s voice or likeness, with knowledge that use of the voice or likeness was not authorized by the individual,” as well as for those who “distribute, transmit, or otherwise make available an algorithm, software, tool, or other technology, service, or device, the primary purpose or function of which is the production of a particular, identifiable individual’s photograph, voice, or likeness,” with knowledge that the use was unauthorized.[42] In this way, the statute targets the technological infrastructure that enables their creation.
At the same time, the ELVIS Act preserves First Amendment protections by carving out exceptions for news reporting, commentary, criticism, parody, satire, documentary works, and other expressive uses.[43] These exceptions closely resemble California’s transformative-use doctrine and New York’s newsworthiness and incidental-use exceptions, ensuring that the statute regulates deceptive commercial exploitation without limiting legitimate artistic, journalistic, or political expression.
The Act has received broad support from more than 180 organizations worldwide, including the Recording Industry Association of America (RIAA), the National Music Publishers’ Association (NMPA), BMI, ASCAP, the Recording Academy, and the American Association of Independent Music (A2IM), as well as prominent artists such as Luke Bryan, who attended the bill-signing ceremony.[44]
California responded in 2024 with two major laws aimed at digital replicas. First, AB 2602, now codified in Labor Code section 927, restricts contractual provisions involving digital replicas in personal or professional services agreements by rendering certain provisions unenforceable unless they clearly describe the intended uses and the individual is represented by counsel or by a labor union.[45] Second, AB 1836 expands Civil Code section 3344.1 by creating protections against the unauthorized use of digital replicas of deceased personalities in expressive audiovisual works and sound recordings.[46] Together, these laws show how California is treating AI replication as an immediate labor, consent, and postmortem-rights issue.
The ELVIS Act also reflects a growing federal and state-level effort to confront the dangers posed by AI to the right of publicity. In January 2024, a bipartisan group of U.S. House lawmakers introduced the No Artificial Intelligence Fake Replicas and Unauthorized Duplications Act (No AI FRAUD Act), which would impose liability on those who “facilitate, create, and spread AI frauds without [an individual’s] permission,” while “balancing the right against First Amendment protections to safeguard speech and innovation.”[47] Similarly, the Senate introduced the Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act, which would impose liability on individuals, companies, and platforms that produce or distribute unauthorized AI-generated replicas of individuals in audiovisual works or sound recordings.[48]
Although no comprehensive federal right-of-publicity statute currently exists, these legislative efforts reflect a rapidly growing recognition that identity and likeness must be protected against technological replication as artificial intelligence advances.
VI. Conclusion
The right of publicity protects everyone’s name, image, likeness, and voice from unauthorized commercial use. California and New York offer the most developed frameworks, differing primarily in scope: California provides broader common law and statutory protections, including a 70-year postmortem right, while New York operates exclusively by statute with a 40-year postmortem limit. Both balance these rights against First Amendment exceptions for news, satire, and transformative works.
AI has made these protections urgently relevant. Tennessee’s ELVIS Act was the first law to directly target AI-generated replicas, followed by California’s AB 2602 and AB 1836. Federal proposals like the No AI FRAUD Act and NO FAKES Act show that legislatures are aware of the growing need for federal protections, but no comprehensive federal law yet exists.
Overall, individuals should familiarize themselves with their state’s right of publicity laws, particularly around postmortem rights and AI-generated content. As this legal landscape rapidly evolves, proactive estate planning, clear contractual protections, and close attention to emerging legislation will be essential for protecting one’s identity, both in life and after.
[1] Cal. Civ. Code § 3344 (West).
[2] Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988).
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] N.Y. Civ. Rights Law § 50 (McKinney).
[8] N.Y. Civ. Rights Law § 51 (McKinney).
[9] Cross v. Facebook, Inc., 14 Cal. App. 5th 190, 208, 222 Cal. Rptr. 3d 250, 265 (2017).
[10] Cal. Civ. Code § 3344 (West).
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] N.Y. Civ. Rights Law §§ 50, 51 (McKinney).
[16] Id.
[17] Stephano v. News Grp. Publications, Inc., 64 N.Y.2d 174, 182, 474 N.E.2d 580, 583 (1984).
[18] N.Y. Civ. Rights Law § 51 (McKinney).
[19] See Cal. Civ. Code § 3344.1 (West).
[20] Alex Bigman, Publicity Rights Are Expanding in the Shadow of the First Amendment, Colum. J.L. & Arts JLA Beat (Feb. 16, 2026), https://journals.library.columbia.edu/index.php/lawandarts/announcement/view/862.
[21] S. 5959D, 2019–2020 Leg., Reg. Sess. (N.Y. 2019).
[22] N.Y. Civ. Rights Law § 50-f (McKinney).
[23] Brinkley v. Casablancas, 80 A.D.2d 428, 442, 438 N.Y.S.2d 1004, 1013 (1981).
[24] N.Y. Civ. Rights Law § 50-f (McKinney).
[25] Id.
[26] Id.
[27] Katie Townsend, Raising the Dead: Understanding Post-Mortem Rights of Publicity, documentary (Feb. 4, 2022), https://www.documentary.org/column/raising-dead-understanding-post-mortem-rights-publicity.
[28] Cal. Civ. Code § 3344 (West).
[29] Parisi v. Sinclair, 774 F. Supp. 2d 310 (D.D.C. 2011).
[30] Page v. Something Weird Video, 960 F. Supp. 1438 (C.D. Cal. 1996).
[31] Kirby v. Sega of America, Inc., 144 Cal. App. 4th 47 (2006).
[32] Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 396, 21 P.3d 797, 802 (2001).
[33] Id.
[34] Id. at 407.
[35] Id.
[36] See Doe v. Darien Lake Theme Park & Camping Resort, Inc., 277 A.D.2d 967, 715 N.Y.S.2d 825 (2000).
[37] Id.
[38] Kimberlee Kruesi, Tennessee Just Became the First State to Protect Musicians and Other Artists Against AI, Associated Press (Mar. 21, 2024), https://apnews.com/article/artificial-intelligence-ai-music-songwriting-tennessee-eb95c850f13fd78f9e65abce2ee45091.
[39] Id.
[40] Kristin Robinson, Tennessee Adopts ELVIS Act, Protecting Artists’ Voices From AI Impersonation, Billboard (Mar. 21, 2024), https://www.billboard.com/business/legal/tennessee-elvis-act-protecting-artists-voices-ai-impersonation-1235637934/.
[41] Id.
[42] Tenn. Code Ann. § 47-25-1105.
[43] See Tenn. Code Ann. § 47-25-1107.
[44] Robinson, supra note 40.
[45] Assemb. B. 2602, 2023–2024 Reg. Sess. (Cal. 2024).
[46] Assemb. B. 1836, 2023–2024 Reg. Sess. (Cal. 2024).
[47] H.R. 6943, 118th Cong. (2024).
[48] S. 4875, 118th Cong. (2024).
