Published: 2026-10-19 · Prepared by the The Fappening Top editorial research desk

Legal Framework of the Right of Publicity

Deepfake technology, which uses artificial intelligence to create hyper-realistic but synthetic media, has sparked significant legal and ethical debates, particularly concerning the right of publicity. This right, which protects individuals from the unauthorized commercial use of their likeness, faces new challenges as deepfakes blur the lines between reality and fabrication. Legal frameworks struggle to address the implications of these technologies, which can be used to defame, deceive, or exploit individuals without their consent. As courts and legislatures grapple with these issues, cases involving the right of publicity and statutes governing litigation procedures offer critical insights into the evolving legal landscape.

Legal Framework of the Right of Publicity

The right of publicity, rooted in privacy and property law, grants individuals control over the commercial use of their image, name, or likeness. This right has been central to numerous legal disputes, particularly in cases involving unauthorized portrayals. For example, in Phelps v. Anti-Defamation League (2006-06-09), the court addressed the intersection of defamation and the right of publicity, emphasizing the need to balance free speech with individual protections. Similarly, Anti-Defamation League v. Quigley (2004-03-01) explored how public figures' rights might be limited in the context of controversial speech. These cases highlight the complexity of applying traditional legal principles to emerging technologies like deepfakes, which can replicate likenesses with unprecedented accuracy.

Legislative efforts to address deepfakes have been limited, leaving courts to interpret existing laws. Statutes such as 28 U.S.C. § 1407, which governs multidistrict litigation, may become relevant in cases involving widespread deepfake-related claims. However, the right of publicity remains a patchwork of state laws, complicating uniform legal responses. As deepfakes proliferate, the need for clear legal standards to protect individuals from unauthorized use of their likeness becomes increasingly urgent.

Deepfakes and the Evolution of Legal Challenges

Deepfake technology introduces unprecedented challenges to the right of publicity by enabling the creation of synthetic media that can mimic individuals' appearances and voices. Unlike traditional forms of unauthorized use, deepfakes can be generated without direct involvement from the subject, making enforcement difficult. Courts have yet to fully address how existing laws apply to these cases, though precedents from other areas of law may offer guidance. For instance, Babies Right Start, Inc. v. Georgia Department of Public Health (2013-09-09) involved disputes over the use of images in public health campaigns, illustrating how the unauthorized use of likenesses can intersect with broader public interests.

The legal community faces the challenge of adapting traditional publicity rights to a digital age where synthetic media can be disseminated rapidly and globally. This complexity is compounded by the fact that deepfakes often involve multiple jurisdictions, potentially invoking 28 U.S.C. § 1407 in multidistrict litigation. As the technology advances, courts may need to clarify whether the right of publicity extends to synthetic representations, even when the subject is not directly involved in the creation of the media.

Case Studies: Phelps v. Anti-Defamation League and Anti-Defamation League v. Quigley

The cases of Phelps v. Anti-Defamation League and Anti-Defamation League v. Quigley provide important context for understanding the interplay between defamation, free speech, and the right of publicity. In Phelps v. Anti-Defamation League (2006-06-09), the court examined whether the use of a public figure's image in a defamation lawsuit could be restricted under the First Amendment. The ruling underscored the tension between protecting individuals from harm and preserving free expression. Similarly, Anti-Defamation League v. Quigley (2004-03-01) dealt with the limits of a public figure's right to control their image in the context of controversial speech, further complicating the legal landscape for deepfake-related disputes.

These cases highlight the difficulty of applying existing legal principles to scenarios involving synthetic media. While they do not directly address deepfakes, they illustrate the broader challenges of balancing individual rights with the public's interest in free expression. As deepfakes become more prevalent, courts may need to revisit these precedents to determine how they apply to the unauthorized use of synthetic likenesses.

State-Level Litigation and Public Health Considerations

State courts have also grappled with issues related to the right of publicity, particularly in cases involving public health and social welfare. For example, Babies Right Start, Inc. v. Georgia Department of Public Health (2013-09-09) involved a dispute over the use of images in public health campaigns, raising questions about the extent to which public entities can use individuals' likenesses without consent. Similarly, New Hampshire Right to Life v. Dep't of Health & Human Servs. (2015-11-16) addressed the use of images in reproductive health education, illustrating the tension between individual rights and public policy goals.

These cases demonstrate how the right of publicity can intersect with broader societal interests, particularly in the context of public health initiatives. However, they also highlight the lack of uniform standards for addressing unauthorized use of likenesses in digital media. As deepfakes become more common, state courts may need to clarify how existing laws apply to synthetic media, ensuring that individuals' rights are protected while allowing for the use of images in the public interest.

The Role of Statutes in Multidistrict Litigation

28 U.S.C. § 1407, which establishes procedures for multidistrict litigation, may become increasingly relevant as deepfake-related cases involve multiple jurisdictions and plaintiffs. This statute allows courts to consolidate similar cases to avoid conflicting rulings and ensure efficient resolution. However, the application of 28 U.S.C. § 1407 to deepfake disputes remains untested, as the technology is still relatively new. Courts may need to determine whether the statute applies to cases involving synthetic media, particularly when plaintiffs from different states seek redress for unauthorized use of their likenesses.

The potential for multidistrict litigation in deepfake cases underscores the need for clear legal frameworks. Without such frameworks, courts may face challenges in managing the volume and complexity of these cases. 28 U.S.C. § 1407 could provide a mechanism for addressing these challenges, but its application will depend on how courts interpret the statute in the context of emerging technologies.

Intellectual Property and Deepfake Technology

The intersection of deepfake technology and intellectual property law raises complex questions, particularly regarding