A digital replica is a computer-generated recreation of a real person’s voice or visual likeness that is realistic enough to be readily identifiable as that person. Deepfake law is the uneven, fast-moving body of rules governing when creating or distributing one is actionable. There is no single federal deepfake statute of general application as of July 2026, so the answer depends on what the replica shows, what it was used for, and which state you are in.
The reason this area needed new law at all is that the old law misses. Copyright protects fixed expression, not a person. Trademark protects source identification, not identity. Right of publicity comes closest, but it was built for unauthorized endorsements on cereal boxes, and a synthetic video that never copied anything real strains every element of it.
Lehrman v. Lovo (S.D.N.Y. 2025) is the cleanest illustration available. Two voice actors were hired through Fiverr for what they were told was internal research. Their recordings were used to train an AI voice generator, and clones of their voices were sold commercially under invented names.
The court dismissed most of the copyright claims on a principle that surprises people: copyright does not protect against imitation of a voice, only against copying a fixed recording. The synthetic outputs were new recordings that mimicked the originals rather than reproducing them, placing them outside copyright’s scope. The Lanham Act claims failed too, because misrepresenting licensing status is not a statement about the “nature, characteristics, or qualities” of a product.
What survived were the breach of contract claims and the right of publicity claims under New York Civil Rights Law §§ 50 and 51. That is the shape of the whole field in one case. The identity torts do the work, and they do it imperfectly.
Three structural gaps matter, and none is a technicality.
State legislatures moved first, and faster than Congress.
Tennessee’s ELVIS Act, signed March 21, 2024 and effective July 1, 2024, amended the state’s Personal Rights Protection Act of 1984. It is often described as the first law to protect voice, which is not quite right: California Civil Code § 3344, enacted in 1971, has listed voice since its 1984 amendment. What Tennessee did that was genuinely first was target generative AI directly. It defines voice to include “a simulation of the voice of the individual,” and, critically, it creates liability for distributing a tool or service whose primary purpose is producing an unauthorized replica. That reaches upstream, at the model rather than only the poster.
California enacted a pair effective January 1, 2025. AB 2602 added Labor Code § 927, making contract provisions that authorize a digital replica unenforceable where the performer lacked a reasonably specific description of the intended uses and was unrepresented by counsel or a union. It regulates consent rather than prohibiting replicas, which is a different lever entirely. AB 1836 amended Civil Code § 3344.1 to bar unauthorized replicas of deceased personalities in expressive audiovisual works and sound recordings, with a $10,000 statutory floor.
New York was earlier than most realize. Civil Rights Law § 50-f and § 52-c both took effect May 29, 2021. Section 50-f covers digital replicas of deceased performers domiciled in New York; § 52-c gives a private right of action to people depicted in sexually explicit deepfakes. Amendments signed December 11, 2025 added disclosure requirements for AI-generated “synthetic performers” in advertising.
The federal TAKE IT DOWN Act was signed May 19, 2025. It criminalizes publication of non-consensual intimate imagery including AI-generated NCII, and requires covered platforms to remove such content within 48 hours of a valid victim request. The platform obligations took effect May 19, 2026, and the FTC began enforcement then. It is narrow by design: it addresses one category of content, not digital replicas generally.
The NO FAKES Act would create a federal, licensable property right in voice and visual likeness, reaching individuals and, on a knowledge standard, platforms that host replicas. It has been introduced repeatedly since 2023. The Senate Judiciary Committee unanimously advanced S. 4591 on June 18, 2026, and the 2026 version added a DMCA-style counter-notification process in response to sustained First Amendment objections.
It is not law. State the status with the date attached, because it may change.
Section 230 immunizes platforms for third-party content, but § 230(e)(2) carves out “any law pertaining to intellectual property.” Whether right of publicity is such a law is genuinely unresolved. The Ninth Circuit held in Perfect 10 v. CCBill (2007) that the carve-out covers only federal IP, leaving platforms immune from state publicity claims. Other courts have gone the other way. That split is a large part of why victims target posters rather than hosts, and part of why NO FAKES addresses platform liability expressly.
What is a digital replica under the law? A digital replica is a newly created, computer-generated representation of a real person’s voice or visual likeness that is readily identifiable as that person. That is close to the wording used in the NO FAKES Act and in the Copyright Office’s digital replica report. State definitions are narrower and vary: New York’s Civil Rights Law § 50-f reaches only deceased performers, and defines a digital replica as a computer-generated performance the person did not actually give that is so realistic a reasonable observer would believe it was theirs. The definition matters because it captures output that is entirely synthetic. Nothing real was copied, so copyright does not reach it, which is why states wrote a separate category rather than relying on existing law.
Is making a deepfake of someone illegal? It depends on the use, the state, and the content, and there is no single national answer as of July 2026. Commercial uses that trade on a person’s identity are actionable under right of publicity law in most states. Sexually explicit deepfakes are separately criminalized federally under the TAKE IT DOWN Act of 2025. Purely non-commercial deepfakes, including satire and commentary, often fall outside publicity statutes entirely and may be protected by the First Amendment.
Has the NO FAKES Act passed? No. As of July 2026 the NO FAKES Act has not been enacted. The Senate Judiciary Committee unanimously advanced S. 4591, the NO FAKES Act of 2026, on June 18, 2026, sending it to the full Senate, but it is not law. Earlier versions were introduced in 2023, 2024 and 2025 without passage. Treat any claim that a federal digital replica right already exists as incorrect.
Why does traditional right of publicity struggle with deepfakes? Three structural reasons. Most state statutes require a commercial use, meaning advertising or trade, so a deepfake made to humiliate or mislead rather than sell may not qualify. The right is state law, so protection varies sharply and roughly a dozen states have no statute at all. And the First Amendment protects parody, news and commentary, which is where a large share of synthetic media sits.
Going further: AI Deepfakes and Your Right of Publicity, what to do about your likeness .
This page is general legal information, not legal advice, and it does not create an attorney-client relationship.
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