USA – NEW YORK Trends and Developments Contributed by: Nancy E Wolff, Scott J Sholder and Elizabeth Safran, Cowan, DeBaets, Abrahams & Sheppard LLP
of a person’s likeness be for commercial pur - poses or limit viable claims to those where a person’s name or likeness has “intrinsic value”, such that essentially only celebrities are guaran - teed protection. Existing state laws on rights of publicity (there is currently no uniform federal law in this arena) aim to prevent the unauthorised use, for profit, of an individual’s persona, which includes identifiable aspects of their identity. New York extends such protection, for example, to a living individual’s “name, portrait or picture... [for] advertising pur - poses, or for the purpose of trade,” affording civil liability against misappropriation of a person’s “voice” (see N.Y. Civ. R. L. Section 50). Most states do in fact recognise rights of publicity, either via common law or statute, and while at first blush, it may appear to be a viable guard - rail against unauthorised digital replicas, the lack of uniformity across state law would likely, here, too, present a challenge. Some states, for example, restrict the right of publicity to limited classes of individuals, such as those domiciled in the state or exempting the deceased. Still, states have begun to address digital rep - licas from the guise of their right of publicity statutes, acknowledging that it is a feasible fit for addressing at least some of the legal issues such replicas raise. In June 2024, for example, New York passed a Digital Replica Contracts Act that expanded the state’s right of publicity law to include digital replicas, but did so only for deceased performers living in New York when they died. Meanwhile, Tennessee enacted the so-called “ELVIS Act” or Ensuring Likeness Voice and Image Security Act, the following month, updating its “Protection of Personal Rights” to include generative AI models that enable human impersonation and allow users to make unau - thorised fake works adopting another’s image
or voice. Such legislation faces jurisdictional questions, though, as well as having a potentially limited reach to subject out-of-state defendants to liability. Finally, the US Lanham Act, which is a federal legislation addressing trade marks and certain acts of unfair competition, may provide some recourse. In certain instances, digital replicas could conceivably constitute false endorse - ment, which is prohibited under the Act, and arises where a celebrity’s persona is used with - out permission to suggest false endorsement or association. Such claims require that the defendant demonstrate the following, as refer - enced in Beastie, Boys v Monster Energy Co., 66 F. Supp. 3d 424, 448–49 (S.D.N.Y. 2014) (“False endorsement occurs when a celebrity’s identity is connected with a product or service in such a way that consumers are likely to be misled about the celebrity’s sponsorship or approval of the product or service.”): “(1) made a false or mis - leading representation of fact; (2) in commerce; (3) in connection with goods or services; [and/ or] (4) that is likely to cause consumer confusion as to the origin, sponsorship, or approval of the goods or services”. Again, however, commercial use is required, as well as a likelihood of con - sumer confusion, or that the use caused mistake or deceived as to the connection of the person with the goods or commercial activity at issue. This limited scope would be unlikely to cover whole swathes of uses for which digital replicas would be created, such as political commentary or “revenge porn”. California’s recent legislation As discussed, various states have begun to take note of the issues posed by digital replicas, as well as generative AI generally, enacting or expanding existing laws to cover AI conduct. Of all of the states grappling with the risks posed by
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