Safeguarding Name, Image, and Likeness Rights in the Digital Age
Right of Publicity in the Era of Deepfakes and AI
Rapid technological developments have made it easier than ever to replicate a person’s image and likeness. Deepfakes have proliferated and athletes, celebrities, and influencers are prime targets for scammers looking to leverage their fame. How can IP professionals help their clients protect their rights? Sarah Morgan finds out.
There may seem to be a constant barrage of news stories about deepfakes of celebrities. Over the past year, we’ve seen stories of people being robbed of thousands of dollars by scammers posing as famous actors and deepfakes of actors being used for all sorts of nefarious reasons, including for political gain.
Deepfakes are unauthorized and deceptive replications of an individual’s name, image, and/or likeness created using artificial intelligence (AI) technologies. These digital replicas are often indistinguishable from authentic content and can be used to mislead, defraud, or harm individuals, consumers, and brand owners. In February 2025, INTA’s Board of Directors voted to approve a Board Resolution addressing recent advancements in AI technology that have lowered the cost and eased the access of tools that may be used to create deep fakes.
This proliferation of AI-created images and videos, which make unauthorized use of an individuals’ Name, Image, and Likeness (NIL) rights, is not going to abate. A session organized by INTA's Right of Publicity (RoP) Committee entitled Beyond the Field: Navigating the Complexities of Right of Publicity and Name, Image, Likeness Rights in the Digital Age (Thursday November 20, 2:30 pm-3:30 pm) will explore the issues in more detail.
According to security company Security Heroes, in its 2023 State of Deepfakes report, there was a 550 percent increase in the total number of deepfake videos online between 2019 and 2023 (amounting to a total of 95,820 videos in 2023 alone) and this number has only continued to grow.
Now, celebrities and athletes not only need to protect their ‘real world’ rights, but also their digital personas.
Session moderator Nicholas Hawkins, partner at Womble Bond Dickinson LLP (USA), says: “Celebrities and athletes don’t only have to worry about their real-world NIL being used without authorization. They also have to be concerned about digital versions of themselves being created and used without authorization.”
“Social media and the rise of influencer culture has leveled the playing field.”
- Bruce Paul | McBrayer Firm (USA)
In agreement, panelist Relani Belous, owner of Belous Law (USA), says: “NIL rights are more important than ever because they are key to those who make their livelihood from their persona—and the bad actors and interpretation of old laws are moving just as fast as the AI/tech revolution. Contemplate the scenario if your mirror was constantly taking selfies of you (sans permission) or perhaps anything your digital presence might say in perpetuity!”
And it’s not just celebrities and athletes who should see protecting their NIL rights and the RoP as critical issues. “Five years ago, it was mostly celebrities such as Michael Jordan, Prince, and Taylor Swift policing unauthorized uses of their name, image, and likeness,” says fellow panelist Bruce Paul, member at McBrayer Firm (USA). “Rights of publicity statutes and common law rights of action largely existed to protect celebrities and athletes. Social media and the rise of influencer culture have leveled the playing field in that ‘everyday people’ now can monetize their names, images, voices, and personal brands.”
Essentially, protecting your NIL rights is no longer just the domain of the bona fide celebrity. But with this opportunity comes great risk. Mr. Paul adds: “Changes in technology have leveled the playing field for infringers too, enabling almost anyone to use easily accessible (and rapidly advancing) tools to mimic anyone’s name, image, voice, and likeness for commercial gain or defamatory harm. This rapid evolution in personal brand value and technology has forced lawyers and legislators to re-envision and reconsider necessary protections and remedies for a growing segment of society.”
While NIL rights can be incredibly valuable, the Lanham Act, common law trademark rights, and their international counterparts, don’t always protect these publicity and NIL attributes, explains Mr. Paul.
He adds: “Lawyers in the brand protection space need to have a better understanding of how publicity and NIL rights and claims coexist with traditional trademark rights and claims and fill in the gaps where traditional trademark protections fall short.”
The patchwork of evolving US state laws related to these issues and watching and waiting for Congress to enact meaningful legislation that provides a national standard of protections is a pressing concern for those in this space.
“AI isn’t going anywhere so practitioners should be aware of how it is being used in the sports and entertainment industry”
- Nicholas Hawkins | Womble Bond Dickinson LLP (USA)
This makes understanding and safeguarding these rights more important than ever, particularly as the potential value of these rights is substantial. There are numerous opportunities for celebrities to positively leverage AI, says Mr. Hawkins, adding that brands can use the NIL rights of athletes/celebrities/influencers “beyond their ‘physical’ persona and extend to digital media and versions of a person.” Take Eminem’s use of an AI version of himself in his “Houdini” music video as a prime example.
As Mr. Hawkins states: “AI isn’t going anywhere so practitioners should be aware of how it is being used in the sports and entertainment industry and how they can ensure that their clients are protected but are also aware of the opportunities.”
