The Right of Publicity: What Plaintiffs Attorneys Should Know
The right of publicity is a state-law doctrine that gives individuals control over the commercial use of their identity, including their name, likeness, voice, and other recognizable attributes, as well as the exclusive right to license that identity.
Originating in privacy and unfair competition principles, it has since evolved into a form of intellectual property right. The concept was first articulated in 1953 by the US Court of Appeals for the Second Circuit in Haelan Laboratories v. Topps Chewing Gum.
In that case, Judge Jerome Frank coined the term right of publicity while recognizing that a professional baseball player held an assignable economic interest in his image separate from the traditional privacy tort. This case established the foundation for today’s doctrine by affirming that a person’s identity is not merely personal but also a valuable property interest that can be licensed and enforced.
State Recognition: Statutes vs. Common Law
Unlike copyrights or trademarks, the right of publicity is governed by state laws rather than a single federal statute. Over 30 states currently recognize an individual’s right of publicity in some form, but in different variations.
Roughly half of all states have enacted specific statutes that explicitly protect a person’s name, likeness, voice, or other aspects of identity from unauthorized commercial use. These laws often spell out details like which personal attributes are protected, whether the right survives after death (and for how long), and what remedies a person can seek if their rights are violated.
For example, states like California and New York provide statutory publicity rights. In fact, those states even recognize the right under both statute and common law, while Indiana and Oklahoma treat publicity rights as transferable property that can endure for decades after a person’s death. Generally, these state statutes allow someone whose identity was misused to seek injunctions to stop the misuse, claim financial damages or the profits earned from the misuse, and sometimes even recover preset minimum damages or attorney’s fees to deter violations.
Many other states recognize the right of publicity through common law, even if they don’t have a specific statute. In these states, courts have acknowledged that using someone’s name or likeness for commercial gain without permission is an invasion of privacy or a form of unfair competition.
Important court decisions have established publicity rights in states such as Georgia, where a famous case involving Martin Luther King Jr.’s likeness confirmed the right, and Wisconsin, where a court recognized the claim when a football star’s nickname was used in advertisements without consent.
Likewise, courts in states like New Jersey, Michigan, Minnesota, Missouri, South Carolina, and West Virginia have indicated that individuals can sue for the unauthorized commercial use of their identity, even though no statute explicitly says so. This common-law approach typically originates from the privacy tort of “misappropriation of name or likeness,” and it similarly aims to protect a person’s ability to control and profit from their own identity.
However, a minority of states do not clearly recognize a right of publicity at all. For instance, Iowa, Alaska, Maine, North Dakota, and Wyoming have not established a dedicated publicity right by statute or definitive court decision. If someone’s identity is misused in these states, they may be limited to other legal theories to seek relief. They might invoke the general privacy tort of appropriation (if that concept is recognized in their state) or perhaps rely on federal laws against false endorsement or deceptive marketing, such as claims under the Lanham Act.
Another variance is whether the right survives a person’s death. About two dozen states allow a deceased person’s estate or heirs to enforce publicity rights, often for a set term of years. For example, California and Indiana allow long post-mortem rights, whereas New York historically did not until a recent statute (NY §50-f) created a post-mortem right for deceased celebrities. Plaintiff attorneys should note that the class of potential claimants may include estates of famous individuals in states with such post-mortem protections.
Two Growing Areas of Publicity Rights
The Right of Publicity is facing new challenges (and opportunities for plaintiffs attorneys) as technology, like AI, becomes mainstream.
Artificial Intelligence and Deepfakes
AI tools can now produce convincing fake images, videos, and voice clones of real people, creating new publicity-rights issues, and states are starting to treat unauthorized AI-generated likenesses or voices as violations.
For example, Tennessee’s 2024 Ensuring Likeness Voice and Image Security (ELVIS) Act expanded its publicity statute to cover digitally cloned voices and likenesses, banned unauthorized simulations for commercial use, and imposed liability on developers and distributors of deepfake tools. Other states and Congress have proposed similar laws in response to AI voice cloning and AI-generated songs or videos without consent.
These statutes open potential claims against AI platforms and users who exploit someone’s identity. Defendants, however, are raising First Amendment defenses; for example, a California law restricting political deepfakes was partly enjoined on free speech grounds. Early cases, such as the George Carlin estate’s suit against a podcast that generated his AI voice and image, show courts will soon address whether AI likenesses are “uses” of a person’s identity or protected expression.
Social Media and Influencer Culture
Influencers and social media users are now plaintiffs in right-of-publicity suits. Social media platforms have faced claims such as Fraley v. Facebook, which settled for $20 million over use of names and photos in sponsored story ads without consent. Companies that mine user content or personal data for profit also risk liability.
Courts and commentators are testing these laws on everything from the value of an influencer’s endorsement to unauthorized use of personal data in freemium people-search reports. This creates both misappropriation risks and opportunities for enforcement, especially through class actions, when identities are commercially exploited without authorization.
Katrina Carroll is a founding partner of the Chicago-based firm, Carroll Shamberg, and a nationally recognized plaintiff’s attorney known for her work in complex class action litigation. She specializes in consumer fraud, data privacy, and product liability.
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