The Commodification of Identity in the Age of AI
Written by Talia Cherry | March 26, 2026
Growing concerns surrounding artificial intelligence are no longer imagined, and for many areas of the entertainment industry, artificial intelligence is actively used and integrated into various stages of production. Whether that be for vocals for songs that are AI-generated and mimic the voices of famous musicians, or for doubles that use the likeness of a movie star for stunts or posthumous features, artificial intelligence has begun to walk the line of exploitation. If a performer’s identity and persona is considered a valuable commodity according to entertainment law, what happens when this commodity can be replicated and sold to third parties without the performer’s consent?
LIMITATIONS OF RIGHT OF PUBLICITY LAW
Definition of Right of Publicity
An individual’s right of publicity “prevents the unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion” (Cornell Law School). The right of publicity is the primary method of protecting how someone’s identity is used commercially. Yet, artificial intelligence has demonstrated that entertainment law will inevitably struggle to keep up with the increasing caliber of deepfakes.
Vulnerability of Right of Publicity Protections
First Amendment arguments for the use of deepfakes are powerful. Oftentimes, courts protect expressive works that use a celebrity’s persona without their consent, such as in parodies or biopics. Courts have gone so far as to state that depictions that go beyond reproduction for commercial gain when “a product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness” (D’Angelo and Kim 2018). Moreover, the way states define one’s likeness vary drastically from state to state. Under some circumstances only name and image are protected, and not characteristics like voice. Discrepancies by state are compounded when studying postmortem rights. For example, California offers seventy years of protection to one’s likeness; however, many states offer no protection at all (Perot 2023). These inconsistencies leave estates at potential risk of being subject to unconsented digital replication. The reality is that a performer may have substantial legal protection in one state, and none in another if a deepfake is seen as an expression of creativity under the First Amendment. This presents itself as a real issue that affects entertainment law currently, with ‘holograms’ of performers circulating of performances that never actually happened.
LEGAL RESPONSE & CONCLUSION
This analysis of current right of publicity protections demonstrates that there is a need for more consistency across the entertainment industry to ensure that performers are protected across the board. Firstly, redefining ‘likeness’ on a federal level to include AI-generated faces and voices will allow for entertainers to be more explicitly protected from deepfakes. In doing this, mandatory consent should also be required for commercialized use of deepfakes. Postmortem rights should be established at the federal level to ensure universal protection across the United States from unethical use, such as producing new performers from entertainers without their knowledge or permission. As for any future First Amendment claims, courts should establish a distinction between using deepfakes of entertainers as expression versus other, commercial uses. Courts should test to see if first, a reasonable person would believe the content is the real-life entertainer, and second, the deepfake is not used in an expressive way and it also lacks consent from the performer or their estate. For example, protected uses could be biographical films, satire, biological films, whereas non-protected uses would be when performances are produced that are so realistic audiences could reasonably believe it is the real performer, and the creator is creating it for a commercial purpose rather than for commentary purposes. Towing the line will no longer allow creators to exploit an entertainer’s likeness and hide behind the guise of artistic expression. By establishing a legal standard as previously described, at a minimum, would allow entertainers to feel comfortable sharing their talents and associated likeness with the world, without fear of being commodified during this lifetime…or the next.
References
Cornell Law School. (2020). Publicity. LII / Legal Information Institute. https://www.law.cornell.edu/wex/publicity
D’Angelo, F., & Kim, M. J. (2018). Sivero v. Twentieth Century Fox Film Corp. Loeb & Loeb LLP. Loeb.com. https://www.loeb.com/en/insights/publications/2018/02/sivero-v-twentieth-century-fox-film-corp
Perot, E. (2023). Post-Mortem Rights of Publicity—A Comparison of New York and California. Developments and Directions in Intellectual Property Law, 348–364. https://doi.org/10.1093/oso/9780192864475.003.0022
