USA – FLORIDA Trends and Developments Contributed by: Patricia M Flanagan, Camila Chediak, Brian J Paul and Jodi-Ann Tillman, Shutts & Bowen LLP
any harm caused. Additionally, corrective relief may be ordered to rectify any public misconceptions resulting from the infringement. Copyright Protects original expression fixed in a tangible medi - um, such as books, music, films and other works. It ensures creators have control over the use and dis - tribution of their works. Although copyright and ROP often intersect, they protect different interests: the expressive work versus the persona. Pre-emption issues may arise under Section 301 of the Copyright Act when state law ROP claims fall within the subject matter of copyright and are based on rights equivalent to the exclusive rights granted under the Copyright Act. Careful pleading can preserve injuries under the distinct areas of law (copying versus right to control identity). Understanding the interplay between the three doc - trines is crucial for selecting the most suitable pro - tections and developing an effective strategy. This is especially relevant in the rapidly evolving AI land - scape. For instance, in AI-driven ads, pair a Lanham Act false endorsement theory (likelihood of confusion as to sponsorship/affiliation) with Florida publicity claims (unauthorised commercial use of identity). This dual track addresses consumer confusion and personal identity control. Additionally, when creative works are copied or mate - rially altered, copyright claims can secure takedowns and statutory remedies. In cases where a person’s identity is exploited (even absent copying the work), right of publicity becomes relevant. Lastly, in the event of false endorsement, trade mark fills the gap to address that issue. Right of publicity claims available AI can now conjure a convincing likeness of an indi - vidual in seconds ‒ placing their face on advertise - ments they never endorsed, generating their voice to reading a script they never spoke, or inserting their image into contexts that cause reputational and eco - nomic harm. For Florida practitioners and business
owners, two questions dominate: What claims exist today under Florida law, and how might a pending federal right reshape the field? This article answers both and closes with tactical guidance plaintiffs can use now. Florida already provides a potent toolbox against unauthorised AI replicas. The centrepiece is Florida’s statutory right of publicity, Fla. Stat. § 540.08, which prohibits the unauthorised use of a natural person’s protected aspects, such as a natural person’s name, portrait, photograph, or other likeness, for commer - cial or advertising purposes, with civil remedies that include damages, fees, and injunctive relief. Florida case precedent has explained that the purpose of the statute is to prevent the use of a person’s name and likeness to promote a product or service “because of the way that the use associates the person’s name or personality with something more”. Tyne v Time Warner Ent. Co., L.P. , 901 So. 2d 802, 807 (Fla. 2005). Plain - tiffs can pair the statute with common-law misappro - priation claims to capture non-commercial exploita - tion and emotional harm scenarios. Florida’s recent criminalisation of AI “nudification” and certain explicit deepfakes add leverage in cases involving sexualised content, complementing civil remedies and sharpening the risk calculus for defend - ants. Together, these pathways position Florida as a favourable forum when AI misuse targets residents or Florida markets. For instance, in October 2025, Florida enacted a law criminalising use of AI to gen - erate an altered sexualised depiction of an identifiable person without consent (“nudification”), with felony exposure. This law was enacted following the arrest of Lucius William Martin, who used AI to create nude images of minors. The software Martin used digital - ly removed the girls’ clothing in pictures he down - loaded from social media, effectively “nudifying” the social media posts. “Brooke’s Law”, another Florida law enacted in 2025, provides additional protections against such harmful deepfake materials by requir - ing digital platforms to create a system for victims to report deepfakes to them, and establish an inter - nal review process to confirm the allegation and take the images down within 48 hours. Such laws make Florida an advantageous venue for residents targeted
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