Right of Publicity: Commercial Use of Name, Image, Voice, and Likeness

The right of publicity controls commercial use of a person's identity — name, image, voice, signature, and other recognizable attributes. It is state law. There is no federal publicity statute, and the differences between states are not cosmetic: they reach whether the right exists at all, what it covers, how long it lasts after death, whether registration is required, and which defenses succeed.

That structure produces the single most common clearance error, which is applying one state's rule nationally. A campaign cleared under a permissive standard can still generate liability where the same use is actionable, and a plaintiff will choose the forum accordingly.

What the right protects

Roughly half the states have publicity statutes; many others recognize a common-law right, and several have both operating in parallel with different scope. The typical claim requires use of a protected attribute, for a commercial or exploitative purpose, without consent, causing injury. The right of publicity is descended from the privacy tort of appropriation, and some states still frame it that way, which matters because a dignitary framing and a property framing produce different damages and different transferability.

Protected attributes have expanded over time. Name and photograph were always covered. Statutes now commonly reach voice, signature, and distinctive likeness, and case law has extended the concept to identifying context — a look-alike in a recognizable setting, a distinctive phrase associated with a performer, or a sound-alike recording made after the performer declined to license the original. The unifying question is identifiability: would the audience understand the reference to be this person?

Two adjacent regimes fill gaps. Federal trademark law supplies a false-endorsement claim under 15 U.S.C. § 1125(a) where a use suggests sponsorship or approval, which gives a national cause of action without a national publicity right. And advertising law separately requires that endorsements reflect genuine views and disclose material connections, so a use that clears publicity analysis can still fail on advertising-substantiation grounds.

The commercial-expressive line, and why courts disagree

Every state permits some unauthorized use of identity, because a right that reached news reporting, biography, and satire would not survive the First Amendment. The disagreement is over the test.

Some courts apply a transformative-use analysis borrowed from fair-use reasoning, asking whether the work adds significant creative elements so that it becomes primarily the defendant's own expression rather than a literal depiction. Others apply a predominant-use test, asking whether the product's main purpose is to exploit commercial value or to make an expressive statement. Others import the trademark-derived approach used for expressive titles and works, which was narrowed by the Supreme Court in 2023 where the challenged use functions as a source identifier rather than as expression. Statutory exemptions add another layer, commonly covering news, public affairs, sports broadcasts, political speech, and works of fiction or biography.

Verify before relying: the applicable test is chosen by the forum, not by the parties. Before treating a use as expressive, identify the states where the person resides and where the work will circulate, then check which analysis those courts apply.

After death, the map fragments

Post-mortem treatment is where national assumptions fail most often. Some states recognize no post-mortem right at all. Others provide a fixed term running decades from death. California protects a deceased personality for seventy years and conditions recovery on registering a claim with the Secretary of State. Indiana protects for a hundred years and reaches a notably broad set of attributes. Tennessee's statute runs ten years from death with continued protection while the identity remains in commercial use. New York, which long refused to recognize any post-mortem right, created one by statute in 2020 covering deceased performers and personalities for forty years, with a registration requirement.

Three variables therefore control any estate-side analysis: the person's domicile at death, the date of death relative to the statute's enactment and any retroactivity provision, and whether a registration step was required and taken. Missing the registration can extinguish an otherwise valid claim, and it is the item most frequently overlooked when rights are inherited rather than managed.

Voice, synthetic media, and NIL

Two developments changed practice in this area. The first is legislative attention to digital replicas. Tennessee enacted the Ensuring Likeness Voice and Image Security Act in 2024, amending its Personal Rights Protection Act to name voice as a protected attribute expressly and to reach services and tools whose primary function is producing unauthorized simulations of a person's voice or likeness. California enacted companion measures in 2024 addressing digital replicas in performer contracts and post-mortem digital replicas, and several other states have added synthetic-media provisions since. Proposals for a federal digital-replica right have been introduced but, as of mid-2026, none has been enacted, so the state patchwork remains the operative law.

The second is the name, image, and likeness market for college athletes. State NIL statutes and association rules made these rights routinely licensable for a large population that previously could not commercialize them. The legal analysis is ordinary publicity law; what changed is volume, the involvement of minors in some deals, and school and conference approval layers that sit on top of the contract.

Where the licensed asset is a voice model, an avatar, or a trained likeness rather than a fixed photograph, the grant needs the same discipline as any other rights transfer — field, territory, term, and exclusivity drawn separately, as set out in IP license agreements. Note also that a person's face used for identification rather than expression can trigger an entirely separate regime; the statutes covered in biometric privacy laws govern face and voice templates regardless of any publicity consent.

Running a clearance

1. Classify the use

   Advertising, merchandise, expressive work, or promotion of one. Write the classification down with the reasoning, because it determines whether a defense is even in play.

2. Fix the jurisdictions

   Identify the subject's domicile, the production location, and the distribution footprint. For anything national or online, plan against the most protective state that plausibly applies rather than the most convenient one.

3. Check status and duration

   If the person is deceased, confirm the state, the date of death, the applicable term, and any registration requirement. Do not rely on a rights-holder's assertion of authority without documentation.

4. Scope the release

   The release must name the media, territory, duration, and permitted edits, and should state expressly whether digital alteration, synthetic recreation, and training of models on the captured material are permitted. Silence on replicas is now a live gap rather than a theoretical one.

5. Screen for endorsement signals

   Even a lawful depiction can imply sponsorship. Review the layout, copy, and adjacency for anything suggesting approval, which is what a false-endorsement claim targets.

6. Preserve the file

   Keep signed releases, the clearance memo, and the sources establishing identifiability decisions. These become the defense record if a claim arrives years later.

• Stale releases. A release signed for print in one territory does not cover global social distribution or a later synthetic recreation. Re-paper before reusing archival material.
• Assumed estate authority. The party offering rights to a deceased person's identity may not hold them, and in registration states the claim may never have been recorded.
• Look-alikes and sound-alikes. Hiring a substitute after the subject declines is the fact pattern most likely to produce liability, because intent to evoke is easy to prove.
• Vendor-generated content. Agencies and AI tools introduce identities nobody cleared. Contract for warranties and indemnification covering publicity claims, and confirm the vendor's own indemnity actually reaches outputs.
• Minor subjects. Parental or guardian signature and, in some states, court approval affect enforceability of a minor's release, especially for long-term grants.
• Platform escalation. Where a synthetic likeness is circulating online, publicity claims and copyright takedowns follow different procedures with different risks, including the counter-notice exposure explained in DMCA takedown procedure.

Questions the desk gets

Do we need permission to mention a public figure in an article?

Generally no. News reporting, commentary, and biography are the core of what publicity law leaves alone, and most statutes contain express exemptions for news and public affairs. The exposure appears when the mention migrates into advertising — a quote pulled into a promotional graphic, or a photograph used to sell a subscription rather than to illustrate a story.

Is an AI-generated voice that merely sounds similar actionable?

It can be. Older case law already recognized claims for deliberate sound-alike recordings used commercially, and newer statutes such as Tennessee's 2024 amendment name voice expressly and reach tools built to produce simulations. Because coverage differs by state and several provisions are recent, treat any recognizable synthetic voice as requiring consent unless a specific exemption clearly applies.

Can publicity rights be assigned or licensed like other IP?

In most states yes, and post-mortem rights are usually transferable by will or descend under the statute. Some states with a privacy-based framing treat the right as personal and less freely transferable. Because the answer varies, a license should identify the governing state, warrant authority to grant, and address what happens if another state's law applies to a particular use.

Does a copyright in the photograph let us use it however we like?

No. Owning the copyright in an image resolves who may reproduce the photograph; it does not resolve whether the subject's identity may be used commercially. Both permissions are needed for advertising. Copyright preemption does sometimes bar publicity claims aimed at the use of a copyrighted work itself, but that defense is narrow and does not cover advertising uses of a person's identity.

What does a release need to say about digital replicas?

It should state whether the material may be altered, whether a synthetic likeness or voice may be generated from it, whether such a replica may be used after the term or after death, and whether the captured material may be used to train any model. Silence favors the subject in newer statutes, and older releases drafted before this issue existed will not carry the point.

Where the risk actually sits

Two places. The first is the clearance that assumed one national rule; the fix is to identify the governing states early and plan to the most protective one that plausibly applies. The second is the release that predates synthetic media; the fix is to re-paper before reusing archival footage, photographs, or recordings in any generated form.

For a specific matter, start with the four facts that decide everything: the person's state, living or deceased status, the classification of the use, and the exact language of any existing release. Confirm the governing framework against the Legal Information Institute's overview of the right of publicity and the relevant state statute, and treat anything involving generated likenesses as unsettled and moving. Where the work also involves AI tooling, the contract terms in contracting with AI vendors should be negotiated in parallel. Related material sits on the Intellectual Property & Media desk.