What Is the Right of Publicity?

Your face, your name, and even the distinctive sound of your voice have commercial value — and the law says that value belongs to you. The right of publicity is the doctrine that turns “you can’t use me to sell your stuff” from a gut reaction into an enforceable legal claim.

What is the right of publicity?

The right of publicity is the right of every individual to control and profit from the commercial use of their identity — most commonly their name, likeness, and voice, but also their photograph, signature, and other attributes by which the public recognizes them. At its heart is a simple principle: if someone is going to make money off of who you are, you should decide whether that happens and on what terms.

Two ideas define the right:

• It is a property right. Unlike a pure privacy interest, the right of publicity is treated as an economic asset you can license, assign, and — in many states — leave to your heirs.
• It is triggered by commercial exploitation. The right generally attaches when your identity is used to advertise, sell, or endorse a product or service, not merely when you are mentioned or depicted.

This right sits at the center of modern name, image, and likeness (NIL) deals, celebrity endorsements, and influencer marketing. For the full landscape — including college athlete NIL deals and post-mortem rights — start with our right of publicity and NIL hub.

Where did the right of publicity come from?

The right of publicity has a surprisingly specific lineage, and knowing it helps explain why the law is still uneven across states.

It grew out of the privacy tort of “appropriation” — one of the four privacy torts catalogued by Dean William Prosser in 1960 — which protected people from having their name or image used without consent. But privacy law framed the harm as emotional (embarrassment, indignity), which fit poorly when the plaintiff was a celebrity who wanted publicity and simply wanted to be paid.

The turning point came in Haelan Laboratories v. Topps Chewing Gum (2d Cir. 1953), where Judge Jerome Frank coined the phrase “right of publicity” and recognized it as a distinct, assignable property right — separate from privacy. Two baseball-card companies were fighting over exclusive rights to players’ photos, and the court held that a person can grant an exclusive right to use their image commercially.

The U.S. Supreme Court weighed in once, in Zacchini v. Scripps-Howard Broadcasting Co. (1977). A television station had broadcast a “human cannonball” performer’s entire 15-second act without permission. The Court held that the First Amendment did not bar Zacchini’s right-of-publicity claim, because airing his whole act threatened the economic value of his performance. It remains the only Supreme Court decision squarely on the right of publicity — which is why so much of the doctrine is built from state cases.

What does the right of publicity actually protect?

The scope has expanded well beyond a photograph. Across the leading cases, courts have protected:

• Name — including nicknames and stage names the public associates with you.
• Likeness — your face, image, or a recognizable look-alike.
• Voice. In Midler v. Ford Motor Co. (9th Cir. 1988), Ford hired a sound-alike to imitate Bette Midler’s distinctive voice for a commercial after she declined. The court held that deliberately imitating a widely known singer’s voice to sell a product is actionable. Waits v. Frito-Lay (9th Cir. 1992) confirmed the same for Tom Waits and added a Lanham Act false-endorsement claim.
• Persona and identity broadly. In White v. Samsung Electronics (9th Cir. 1992), an ad depicted a robot in a blonde wig and gown turning letters on a Wheel of Fortune-style set. Vanna White never appeared — yet the court allowed her claim, holding that the right protects identity, however evoked, not just a literal name or picture.
• Catchphrases and signature elements. Courts have protected identifiers like a signature phrase (for example, Johnny Carson’s “Here’s Johnny” in Carson v. Here’s Johnny Portable Toilets (6th Cir. 1983)).

The through-line: the question is not which attribute was used but whether the defendant used something that makes the public think of you. That elasticity is powerful — and controversial, as dissents in the White case warned about over-broad “identity” claims.

What are the elements of a right-of-publicity claim?

While the exact wording varies by state, a plaintiff generally must prove four things. California’s common-law and statutory framework (Civil Code section 3344) is the most influential model, and our California right of publicity guide walks through it in detail:

1. Use of the plaintiff’s identity — name, likeness, voice, or another recognizable attribute.
2. For a commercial or exploitative purpose — typically advertising, selling, or endorsing goods or services (the statute requires use “on or in products, merchandise, or goods, or for purposes of advertising”).
3. Without consent — no valid release or license authorizing the use.
4. Resulting injury — commercial harm, or under section 3344, the statutory minimum even without proof of actual damage.

Two practical notes. First, you generally do not have to be famous — everyone has a right of publicity; fame mostly affects how large the damages are. Second, the commercial-use requirement is doing enormous work: an unauthorized T-shirt or ad triggers the right, but a news article, biography, or documentary usually does not. That line is where the First Amendment enters.

How does the First Amendment limit the right of publicity?

Because the right of publicity restricts speech — using someone’s name or image is expressive — it constantly bumps against the First Amendment. Courts have developed several defenses that let expression win:

• Newsworthiness / public interest. Reporting on real people and events is protected. Using a person’s name and image in news, commentary, sports coverage, or biography is not actionable, even if the publisher profits from selling the publication.
• Transformative use. Adopted by the California Supreme Court in Comedy III Productions v. Gary Saderup (2001), this test asks whether the work adds significant creative elements that transform the celebrity’s likeness into something new (protected) or merely reproduces it to exploit fame (not protected). A literal charcoal drawing of The Three Stooges failed the test; a heavily stylized, distorted depiction can pass it.
• Expressive works generally. Films, songs, video games, novels, and art receive strong protection — though not unlimited, as video-game avatars of real college athletes showed in cases like Keller v. Electronic Arts (9th Cir. 2013), where realistic in-game likenesses were not transformative.
• Rogers / relatedness test. For expressive works, some courts ask whether the use of a name is artistically relevant and not explicitly misleading.

The dividing line, roughly: if the use is speech about the person or a genuinely creative work, the First Amendment usually protects it. If the use is a commercial pitch that borrows the person’s identity to sell something, the right of publicity usually wins. For where that line falls in ad campaigns specifically, see using someone’s likeness in advertising.

Is the right of publicity federal or state law?

This is the most important structural fact: there is no general federal right of publicity. It is governed almost entirely by state law, which creates a patchwork:

• Statutory states. California, New York, Indiana, Tennessee, Texas, and others have specific publicity or NIL statutes. California uses both a common-law right and Civil Code section 3344; New York codified its right in Civil Rights Law sections 50–51.
• Common-law states. Many states recognize the right only through judge-made law, and a handful barely recognize it at all.
• Post-mortem rights vary wildly. Some states let the right survive death and pass to heirs; others extinguish it. California protects a “deceased personality’s” name and likeness for 70 years after death under Civil Code section 3344.1. Tennessee (home of the “Elvis law”) and Indiana are also famously protective, while some states provide no post-mortem right at all. New York enacted a post-mortem right for deceased performers effective in 2021. Because these durations and heir-transfer rules differ so much, we cover them separately in our post-mortem right of publicity guide.

The federal Lanham Act (section 43(a)) can supply a related false-endorsement claim when unauthorized use implies a celebrity endorsed a product — a theory used successfully in Waits and in Woods-style athlete cases. And the proposed federal NO FAKES Act would, if passed, create nationwide protection against unauthorized AI-generated voice and likeness replicas; see our NO FAKES Act and digital replica laws guide for the current status.

Because which state’s law applies can decide the whole case, our right of publicity by state guide breaks down the key jurisdictions and how they differ.

What remedies are available for a violation?

If someone uses your identity commercially without consent, the potential recovery is substantial:

• Actual damages — the fair market value of the use (what you would have charged) plus any harm to your endorsement value.
• The defendant’s profits attributable to the unauthorized use, to prevent unjust enrichment.
• Statutory damages. Under California Civil Code section 3344, a plaintiff can recover the greater of actual damages or $750 per violation, plus profits — and attorney’s fees and costs to the prevailing party.
• Punitive damages for willful or malicious violations.
• Injunctive relief — a court order to stop the use, pull the ad, or destroy infringing merchandise.

Practical enforcement usually starts with a cease-and-desist letter demanding the use stop and, often, an accounting of sales. The same discipline that governs trademark disputes applies here: move promptly, document the unauthorized use, and avoid overreaching threats. To see how these disputes resolve in real cases, browse our right of publicity case archive.

How does the right of publicity apply to AI and deepfakes?

Generative AI has made the right of publicity one of the fastest-moving areas of intellectual property. Tools can now clone a person’s voice from a few seconds of audio and generate photorealistic video of someone who never sat for the shoot. When those outputs are used commercially — in an ad, a product, or a paid endorsement — they can trigger the same right of publicity that has always covered look-alikes and sound-alikes. The voice cases in particular map cleanly onto today’s technology: Midler and Waits punished human imitators, and courts have little trouble extending that logic to a synthetic imitation that fools the public into thinking the real person participated.

The harder questions are practical. State statutes were drafted long before deepfakes, so plaintiffs often stack a right of publicity claim with false-endorsement, defamation, and unfair-competition theories. Enforcement can also be slow when the creator is anonymous or offshore. That gap is what the proposed federal NO FAKES Act aims to close by creating a nationwide digital-replica right. For a deeper treatment of synthetic media, consent, and the emerging rules, see our guide on AI voice cloning and deepfakes. The core takeaway is unchanged: if a business uses a realistic version of you to sell something without permission, the medium — camera or algorithm — rarely matters to whether you have a claim.

The bottom line

The right of publicity is, in plain terms, your right to say who gets to use you to make money. It began as a corner of privacy law, became a standalone property right in Haelan, earned Supreme Court recognition in Zacchini, and has since stretched to cover voice, look-alikes, and even indirect evocations of identity. But it is not absolute: it is state law, so protection depends heavily on where you are, and it yields to the First Amendment when the use is news, commentary, or genuinely creative expression. If your identity is being used to sell something without your consent, you likely have a claim — and real remedies. If you want to use someone else’s identity, get a written release and check the transformative-use and newsworthiness lines first.

This guide is general education, not legal advice, and does not create an attorney-client relationship. Right-of-publicity outcomes turn on the specific facts of the use and on which state’s law applies — consult an attorney licensed in your jurisdiction before using someone’s identity or bringing a claim.