Right of publicity, explained.

What it covers

The right of publicity covers the commercial use of a person's name, image, likeness and voice, and in some places their signature or recognisable persona. The key word is commercial: using someone's identity to sell or promote something. It clearly covers living talent, and in several jurisdictions it survives death and passes to the estate.

Where it comes from, and why it varies

There is no single global right. In the US it is state law, with no federal statute: California protects it for the living (Civil Code section 3344) and the deceased (section 3344.1), and AB 1836 (2024) extends it to unauthorized digital replicas of deceased performers. In the EU it lives in national image and personality rights, which are not harmonized, so who holds the right and for how long depends on the country. That is why documenting who actually holds it comes first.

California Civil Code section 3344, explained

Section 3344 is California's statutory right of publicity for living people. It bans the knowing use of a person's name, voice, signature, photograph or likeness to advertise or sell something without their consent. Break it and the statute sets damages at 750 dollars or the actual harm, whichever is greater, plus any profits made from the use, and often attorney fees.

Section 3344.1 does the same for people who have died, for 70 years after death, with the estate holding the right. AB 1836 (2024) added digital replicas of deceased performers to that list. So a cloned face or voice used to sell something in California runs straight into 3344.

Right of publicity by state

Because there is no federal statute, it is decided state by state, and about half of the states recognize it, some by law and some through their courts. The strength varies a lot.

California and New York lead. New York protects it under Civil Rights Law sections 50 and 51, and in 2021 added a post-mortem right covering digital replicas of deceased performers. Indiana has one of the broadest statutes, running 100 years after death. Tennessee, home of the original Elvis law, passed the ELVIS Act in 2024 to cover voice and AI cloning directly. Where you enforce depends on where the person lived and where the content is shown.

Right of publicity vs misappropriation of likeness

People use these terms for the same problem, but they come from different places. Misappropriation of likeness is one of the older privacy torts: using a person's identity without consent, treated as a personal harm. The right of publicity treats that same identity as property with commercial value, something you can license and pass to heirs.

In many states the two have merged into one claim. The difference that matters is the remedy: a misappropriation claim leans on the harm to the person, while a right-of-publicity claim goes after the commercial value taken. For a performer whose face is sold in an ad, the publicity claim is usually the stronger one.

Famous right of publicity cases

A few cases shaped the law and still get cited. Haelan v. Topps (1953) is where the term was first used, in a fight over baseball card photos. Zacchini v. Scripps-Howard (1977) is the only time the US Supreme Court ruled on it, siding with a performer whose entire act was broadcast without pay.

Two voice-and-identity cases matter most for AI. In Midler v. Ford (1988), a court held that hiring a sound-alike to imitate Bette Midler's voice in an ad violated her rights, even though her real recording was never used. In White v. Samsung (1992), a robot styled to look like Vanna White was enough, no name, no photo, just a recognisable identity. That is the same logic an AI clone triggers.

Why it is the lever for AI likeness

Copyright can cover a specific film clip or recording, but an AI clone often uses none of your copyrighted material, it recreates the person. The right of publicity is the claim that fits, because it protects the identity itself. For agencies and estates it is usually the primary route, sitting alongside impersonation and privacy claims. talicense registers who holds that authority and preserves the proof needed to enforce it.

Is a person's likeness protected by copyright?

Not usually. A person's likeness is protected mainly by the right of publicity and by image and privacy rights, not by copyright. Copyright covers a specific photograph or recording, owned by whoever created it, while the right of publicity covers the identity in the image, owned by the person. That distinction matters with AI: a deepfake can avoid copying any single copyrighted file and still violate the right of publicity by using the person's identity.

Related rights

Right of publicity does not sit alone. If you are working out who controls a person's identity, a few neighbouring rules matter.

The broadest is personality rights, the international term for control over a person's name, image and voice; the right of publicity is essentially its US commercial half. Next to it sits using someone's likeness without permission, which covers what counts as misuse, including misappropriation of likeness and image rights, and what to do about it.

For the AI angle, deepfake laws are the federal bills and state statutes, the NO FAKES Act, the ELVIS Act, AB 1836, that apply the right of publicity to AI copies. For the practical side, finding and documenting an unauthorized use so you can act on it, see how PROTECT works and how we preserve evidence.