The right to publicity meets generative AI
With each advance in generative AI, the right to publicity is becoming more important, especially for people whose livelihood depends on the monetization of their name, image, and likeness. Cases of NIL abuse and exploitation are constantly in the headlines, and protecting these rights has never been harder.
Take the NO FAKES Act, introduced in the U.S. Senate. This proposed federal legislation seeks to protect individuals from the unauthorized use of their NIL, allowing them to consent to such uses for up to 70 years after their death. It responds to growing concern about deepfakes and other AI that can replicate a person's identity with alarming accuracy, raising real questions of consent and authenticity. The bill sets a uniform standard across states, supplements existing state laws, and provides a civil cause of action for violations.
But is the scope of an initiative like the NO FAKES Act wide enough? How would state laws interact with federal legislation, and what about international law? Everyone in the content ecosystem, talent, creators, agents, and publishers, needs a firm grasp of the origins, the current landscape, and the future of the right to publicity, and of why positive relationships between all parties matter.
The origin story of the right to publicity
The right to publicity has a fascinating history. In 1953, in a case involving Topps trading cards, a New York judge ruled that individuals should have control over the commercial use of their name, image, and likeness. The ruling cited a 1903 right to privacy precedent and built on it, setting the legal foundation for what we now understand as the right to publicity.
Today, despite more than a century of precedent, only half of U.S. states have enacted right to publicity laws. That inconsistency creates a patchwork of protections and leaves many people without adequate recourse when their likeness is misused. It highlights the pressing need for comprehensive federal protection.
Generative AI is borderless
Generative AI crosses local, national, and international borders, and does not fall neatly under any single jurisdiction. As tools produce increasingly realistic images and voices, the misuse of a person's likeness becomes a serious problem. It can affect anyone, but celebrities, athletes, and influencers are especially vulnerable, because their public persona is central to their livelihood.
Consent is crucial, and difficult. It must be granted by the individual or their representative, which creates a complex web of permissions and legal considerations, often involving agents, managers, or attorneys. And the pace of AI development means new forms of content are emerging faster than legal frameworks can adapt.
Technology and government both have to move
Navigating this will take both government action and better tools. Governments need to update legal frameworks to protect talent, while technology needs to make doing the right thing easy. Statutory damages plus simple, accessible mechanisms for obtaining and honoring consent are what encourage compliance across the internet's vast reach.
Detection and takedown technologies matter, but they are reactive. Proactive solutions are also needed: platforms that make it easy to obtain and verify consent, and verifiable, tamper-evident records that establish who is authorized and what is authentic before misuse spreads.
Authenticity is the point
Around the world, different countries take different approaches to the right to publicity, which complicates enforcement and compliance. Giving people tools to authenticate content and establish its provenance helps close that gap. Authenticity matters: people prefer real, verified content, and they want to protect the people they care about.
Consider a channel that posts unofficial movie trailers spliced together from various sources. Fans anticipating a release can be misled or confused. Robust authentication lets creators and audiences tell the real from the fake, and keeps trust intact.