Right of Publicity

Every person has a face, a name, and a voice. These features belong to them, and others may not simply turn them into money. The Right of Publicity is exactly this right: the person decides whether their name or image is used for advertising, products, or other business purposes. The term comes from US law, literally meaning something like “the right to market one’s own person.” Anyone who violates it often has to pay damages. In Germany there is no word-for-word equivalent rule, but very similar claims exist under the general personality right.

When a face is suddenly worth money

For well-known people, their appearance has real market value. A soccer star gets millions for having his face appear on a soda can. Without this right, any company could simply take the image and pay nothing. The star would then have nothing left to sell, since everyone would get it for free.

But it’s not just about money. Anyone who appears in an ad seems like a supporter of the product. A female athlete pictured next to a cigarette brand may thereby lose her credibility. So the Right of Publicity also protects against unintentionally standing for something.

Because of AI, this protection is suddenly relevant to everyone, not just celebrities. A convincing copy of a voice can be generated from just a few seconds of audio recording. Scammers are already using this for fake calls and fabricated product endorsements. That’s why many countries are currently discussing stricter rules.

What exactly is protected and what isn’t

What is protected are the features by which a person is recognized. These include name, photo, voice, and sometimes even a signature catchphrase or a distinctive hairstyle. The decisive question is whether the public recognizes the person. An ad featuring a lookalike can therefore also be prohibited.

A violation usually only occurs with commercial use. A news report about a politician may show his photo, because that serves informational purposes. Satire, art, and criticism are also largely permitted, because freedom of expression speaks in their favor. Exactly where the line between art and advertising lies is often ultimately clarified by courts.

It’s important to distinguish this from copyright. Copyright protects a work, for example the photo itself, and usually belongs to the photographer. The Right of Publicity, by contrast, protects the person depicted. Both can apply simultaneously: a photo may belong to the photographer and still not end up in an ad without the person’s permission. In the US, each state regulates this right on its own, resulting in a patchwork of differing rules.

Deepfakes, commercials, and disputes making headlines

This issue is most often encountered in disputes over AI-generated voices. Voice actors report that companies recreate their voices and use them for audiobooks or announcements. Actors' unions have also gone on strike over this and renegotiated contracts. The result are clauses requiring explicit consent for digital replicas.

Fake endorsements constantly appear in advertising and social media. A well-known face promotes a dubious investment scheme in a short video, without even knowing about it. Such ads violate the Right of Publicity and usually also competition law. Platforms remove them, but are often too slow.

Video games and music are affected as well. Soccer games need licenses for the names and faces of real professional players. And when an AI-generated song sounds like a famous singer, the legal situation is disputed. A common misconception is that a disclaimer like “created just for fun” makes everything permissible. That’s not true: as soon as a person is used recognizably for a business purpose, this disclaimer doesn’t help.