Right of Publicity — Who Controls a Name, Image, and Likeness

The right of publicity protects a person's name, image, and likeness from unauthorized commercial use. How it works, how it differs from copyright and privacy, and what happens when someone uses your identity without permission.

Every person has a right to control the commercial use of their own identity. This is the right of publicity — a state-law right that prevents others from using your name, image, likeness, voice, signature, or other indicia of identity for commercial gain without your permission. For entertainers, athletes, musicians, and public figures, it is often the most valuable intellectual property right they hold.

What the Right of Publicity Protects

The right of publicity is distinct from copyright, trademark, and the right of privacy — though they often overlap. Copyright protects the work you create; the right of publicity protects your identity itself. Trademark protects source-identifying brands; the right of publicity protects your persona. Privacy protects against intrusion and embarrassment; publicity protects the economic value of your identity.

The protected elements go beyond just a name and photograph. Courts have recognized that voice (even a soundalike), signature, likeness (including lookalikes and avatars), nickname and catchphrase, and distinctive performance style or persona can all be protected indicia of identity. Bette Midler successfully sued Ford for using a soundalike singer in a commercial. Vanna White won against Samsung for a robot dressed like her turning letters on a game show set. The test is whether the defendant appropriated the plaintiff's identity for commercial advantage.

State-by-State Patchwork

There is no federal right of publicity statute. Instead, it is governed by a patchwork of state laws — some statutory, some common-law, some both. About 35 states recognize the right in some form. California and New York have the most developed bodies of law, which is why entertainment contracts routinely specify California law for publicity rights.

California's right of publicity statute (Civil Code § 3344) prohibits knowing use of a person's name, voice, signature, photograph, or likeness for commercial purposes without consent. It provides for statutory damages of $750, actual damages, profits, and attorney's fees. California also recognizes a common-law right of publicity that is broader and survives death — the estate can enforce it for 70 years after death under the Astaire Celebrity Image Protection Act (Civil Code § 3344.1).

New York's right of publicity is codified in Civil Rights Law §§ 50-51 and protects name, portrait, picture, or voice used for advertising or trade without written consent. It is narrower than California's — it requires use for advertising or trade, not merely commercial benefit — but it is enforced strictly.

The First Amendment Defense

The right of publicity is not absolute. The First Amendment limits its reach when the use of a person's identity is expressive rather than purely commercial. Courts apply different tests to draw the line:

• Transformative use test (California): Does the work contain significant transformative elements that make it something more than a mere likeness? A Warhol-style artistic rendering may be protected; a realistic wax figure in a commercial display may not.
• Predominant purpose test: Is the use primarily expressive, or primarily commercial? A biography using the subject's name and photo on the cover is expressive and protected. A coffee mug with a celebrity's face slapped on it is commercial and likely infringing.
• Rogers v. Grimaldi test (federal circuits): For titles and content of expressive works, the use of a person's name is protected unless it has no artistic relevance to the underlying work, or it explicitly misleads about the source or content. This is why unauthorized biographies and documentaries can use a subject's name in the title.

Consent, Licensing, and NIL in Sports

The right of publicity is alienable — you can sell it, license it, or give it away. In practice, this happens through name-image-likeness (NIL) agreements, endorsement deals, appearance releases, and broader talent agreements. Since the NCAA's 2021 rule change, college athletes can monetize their NIL rights — a shift that created an entirely new market for publicity rights deals. The key contract terms: scope of permitted use (media, territory, duration), exclusivity provisions, compensation structure (flat fee, royalty, or hybrid), and reversion of rights after the term.

A poorly drafted release can give away far more than intended. A standard appearance release for a film extra, signed without review, may grant the studio perpetual rights to use the person's image in any media now known or later developed — including AI-generated performances. For professional talent, every release is negotiable and every grant of rights should be scoped to the specific project.

AI, Deepfakes, and the New Frontier

The right of publicity has become the primary legal tool for combating unauthorized AI-generated replicas and deepfakes. If an AI model is trained on a performer's voice or likeness and used to generate new content without permission, the right of publicity is the most direct cause of action. Several states have recently amended their publicity statutes to explicitly cover digital replicas, and proposed federal legislation — such as the NO FAKES Act — would create a federal right of action for unauthorized digital replicas.

For anyone whose identity has commercial value, the right of publicity is a property right worth protecting. It doesn't require registration, but it does require vigilance: unauthorized commercial uses must be challenged, or the right may be weakened or deemed abandoned in some jurisdictions. In an era where anyone's likeness can be scraped, cloned, and monetized, knowing the contours of this right is no longer optional.