The right of publicity protects people from unauthorized commercial exploitation of their identity. It is mostly state law, varies widely, and intersects with trademarks, copyright, and the First Amendment.
The right of publicity is a legally created right to control the commercial use of your identity—your name, likeness, voice, signature, and sometimes broader “persona” signals like distinctive catchphrases or mannerisms. It’s one of the newer IP categories, and it’s increasingly relevant for creators, advertisers, founders, influencers, performers, photographers, and anyone using AI to generate realistic voices or faces. It is also not yet expressly federally regulated, so the right and enforcement mechanisms vary from state to state.
Innovation Cafe has a shorter primer at Right of Publicity. This longer article is a cornerstone overview that goes deeper: how claims work, how defenses work, and how the law looks in the biggest U.S. states.
How right of publicity claims usually work
There is no single federal right of publicity statute in the U.S. Most right of publicity rules come from state statutes, state common law, or privacy‑based “appropriation” torts. The details vary, but the reason for the right is the same: if someone uses a person’s identity to sell products, promote services, or imply endorsement, that person should have a claim.
A typical right of publicity case asks questions like these:
First, did the defendant use a protected aspect of identity (name, likeness, voice, signature, etc.)?
Second, was the use “commercial” in the legally relevant sense (advertising, merchandising, fundraising, sponsorship, or other uses for advantage), rather than protected news reporting or expressive work?
Third, was there consent (a release, license, or other authorization)?
Fourth, what harm occurred—lost licensing value, unjust enrichment, reputational harm, or statutory damages where available?
Because this area overlaps with free speech, nearly every serious right of publicity dispute turns into a balancing exercise between a person’s identity interests and First Amendment protections.
What “identity” can mean
At minimum, most jurisdictions protect name and likeness. Many also protect voice, signature, and other identifiers. Some protect a broader “persona” concept—meaning that even if you didn’t literally use someone’s photo, you may still have a problem if you used something that strongly evokes the person in a commercial context (for example, a recognizable voice impression or a famous catchphrase used in an ad). The exact scope depends on the state and the case law.
If you are creating content that uses real people, a helpful mental model is that copyright controls the work (the photo, video, recording) while publicity rights control the person depicted. Owning the copyright in a photograph does not automatically give you the right to use that photograph commercially if it implies endorsement or is used in advertising without the subject’s consent.
Key defenses and limitations
Right of publicity law is shaped by defenses. The most common are:
Consent. A written release (model release, talent agreement, endorsement contract) is the cleanest path for commercial uses.
Newsworthiness / public interest. Many states recognize a broad “newsworthy” exception for journalism and matters of public concern, although “news” is not limited to newspapers.
First Amendment protection for expressive works. Books, films, art, games, and other expressive works often receive substantial protection, especially when the use is transformative or artistically relevant rather than a disguised advertisement.
Incidental use. Brief, incidental, or background uses may be treated differently than prominent, commercial exploitation.
Death. In some states (Wisconsin, Rhode Island, Massachusetts, etc) the right expires upon death. In other states, the right continues for some number of years after death. There is enormous variability between states.
Trademark and consumer confusion overlays. If the identity use implies endorsement, some disputes are framed under the Lanham Act’s false endorsement theory as well as (or instead of) right of publicity. For the trademark basics, see our cornerstone trademark article, or for a quick review, see U.S. Trademarks in 60 Seconds.
Because these defenses are fact‑driven, the same “identity” element (say, a celebrity name) can be lawful in one context (a news article, a biography) and unlawful in another (an ad for your product).
How the law looks in the biggest population states
Below is a practical, high‑level overview of how right of publicity protection works in the ten most populous states. This is not a substitute for state‑specific advice; the point is to give you a “map” of how different the terrain can be.
California
California is one of the most important right of publicity jurisdictions. It has a statutory right for living persons (California Civil Code § 3344) and a statutory post‑mortem right (Civil Code § 3344.1) that can be enforced by heirs for a set period after death. California also recognizes common law publicity rights alongside the statute in many contexts. Statutory damages can be available, and California courts have developed influential First Amendment frameworks (including the “transformative use” approach) for expressive works.
Statutes: Cal. Civ. Code § 3344 and Cal. Civ. Code § 3344.1.
Texas
Texas recognizes publicity rights primarily through common law, and it also provides a statutory post‑mortem right. Texas is important because many disputes involve deceased celebrities and because Texas law can show up in licensing and estate planning strategies. The key is that Texas uses both common law concepts and statute, and the interaction can matter depending on whether the identity holder is living or deceased.
Statute (post‑mortem): Tex. Prop. Code ch. 26.
Florida
Florida has a statute that addresses unauthorized commercial use of name or likeness (Florida Statutes § 540.08). Florida is a significant state for influencer, entertainment, and tourism‑adjacent advertising work, and disputes often turn on whether the challenged use is an advertisement/endorsement versus an expressive or news use.
Statute: Fla. Stat. § 540.08.
New York
New York historically treated publicity rights as purely statutory (no common law right of publicity), centered on New York Civil Rights Law §§ 50–51 for living persons. New York has also become a major state for modern digital replica and post‑mortem protections through more recent statutory developments. New York is therefore an “always check the statute” jurisdiction: outcomes depend heavily on the exact statutory language and exceptions.
Statutes: NY Civ. Rights Law § 50, § 51, and (post‑mortem/digital replica provisions) § 50‑F.
Pennsylvania
Pennsylvania has a statutory right of publicity (42 Pa. C.S. § 8316) and recognizes privacy‑based appropriation claims. Pennsylvania law can matter in media and advertising cases and can become relevant when a person has commercial value in their identity. Pennsylvania’s statute includes a commercial value requirement in some contexts, which is a reminder that states can differ not just on remedies but on who can sue.
Statute: 42 Pa. C.S. § 8316.
Illinois
Illinois has an explicit Right of Publicity Act (765 ILCS 1075). Illinois is frequently relevant in advertising and merchandising disputes and is a common choice of law in national campaigns. Like many statutory states, Illinois also contains specific exemptions and definitions that can change outcomes, so “Illinois publicity rights” isn’t a single concept—it’s a statute you must read carefully.
Statute: 765 ILCS 1075.
Ohio
Ohio is famous in right of publicity law because it produced one of the few right of publicity cases that reached the U.S. Supreme Court (the Zacchini case). Ohio has both statutory and common law publicity rights, and its statute treats publicity rights as a property right in an individual’s “persona.” The state also recognizes privacy‑based appropriation.
Statute: Ohio Rev. Code ch. 2741.
Georgia
Georgia is historically important: it was an early state to recognize privacy rights, and it recognizes a common law right of publicity. Georgia does not have a general right of publicity statute, so the case law matters. Georgia often draws distinctions between private‑figure appropriation (privacy framing) and public‑figure publicity claims (property/value framing).
North Carolina
North Carolina recognizes the privacy‑based appropriation tort but has not recognized a distinct right of publicity. Practically, this means plaintiffs can still have a claim for unauthorized commercial use of their name or likeness, but the conceptual framing and certain remedies may differ from states that treat publicity rights as a broad, freely transferable property right.
Michigan
Michigan recognizes a right of publicity at common law (and also recognizes appropriation as a privacy tort). Michigan does not have a general right of publicity statute, so federal and state case law becomes especially important. Michigan is also a reminder that a “statute list” is not the whole story: some non‑statutory states still provide meaningful publicity rights through precedent.
Which states have right of publicity statutes?
Because right of publicity is mostly state law, people often ask for a clean “state list.” The most useful dividing line is whether a state has an explicit statute granting publicity (or closely related personality) rights. As of this writing, states with statutory publicity rights include: Alabama, California, Florida, Illinois, Indiana, Kentucky, Massachusetts, Nebraska, Nevada, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Texas (post‑mortem statute), Utah, Virginia, Washington, and Wisconsin.
That list is not the whole story. Many other states recognize identity‑based claims through a common law right of publicity, a privacy‑appropriation tort, or both. And some states have not recognized a distinct “right of publicity” (as opposed to privacy‑appropriation). For example, North Carolina’s doctrine is framed as appropriation under privacy law, not as a separate right of publicity.
If you need a state‑by‑state view that is continuously updated, consult a dedicated survey resource and then confirm the actual statute/cases for your state and facts. One widely used resource is Rothman’s Roadmap, “The Law” page, which links to each state’s current summary: rightofpublicityroadmap.com/law/.
Practical guidance: when you need permission
If you are using a real person’s identity to promote goods or services, assume you need permission unless a clear exception applies. For photographers and documentary creators, the key distinction is often editorial vs commercial use. Selling prints as art is different from using an image to advertise a product. For brands, the key risk is implied endorsement: if the ad suggests that a person supports or is affiliated with the product, you are in the danger zone.
If you are building a licensing‑driven model, treat publicity rights as a contract and clearance problem: get releases, define scope, define territory, define media, define term, and keep records. A dispute years later becomes much easier if you can point to a clean paper trail.
AI, voice clones, and “digital replicas”
Right of publicity has become central to debates about AI voice clones, deepfakes, and digital replicas. Many states are updating laws to address voice, visual likeness, and realistic synthetic replicas. If you are producing AI‑generated ads or entertainment content that resembles real people, build a clearance process now: (1) do not assume “it’s synthetic” makes it safe, (2) do not assume “it’s on the internet” means you can use it, and (3) get written consent when in doubt, especially for commercial campaigns.
For creators, the upside is also real: publicity rights can become a licensing asset. For brands, the warning is clear: synthetic media can scale faster than your legal risk calculations.
Internal references: Right of Publicity, U.S. Trademarks in 60 Seconds, Copyright in Two Minutes, AI & Copyright Authorship.
Legal notice: This article is educational information, not legal advice. Copyright rules can change, and outcomes depend heavily on facts (and sometimes the jurisdiction). If you need advice about a specific situation, talk to a qualified attorney.
AI Disclosure: This article was researched and some of the prose improved using AI. The state-by-state portion was largely AI created.