Your creator contract may be unenforceable in one state and a liability magnet in another. That is the practical reality of state right of publicity laws as AI likeness rules multiply. Davis Wright Tremaine notes that Washington joins about a dozen states that have updated these laws for digital replicas. Here is a working map, and the clauses to fix.
Why a patchwork, and why brands carry the risk
There is no federal right of publicity. Each state defines who owns a name, voice or face, how long that right lasts, and what counts as commercial use. For years that was a nuisance mostly for talent agents and ad lawyers.
Generative AI changed the math. A creator’s face can now be cloned, translated, re-voiced and re-cut into a hundred ad variants. Every one of those variants is a potential unauthorized use if the paper behind it is thin.
Brands sit at the end of that chain. You approve the asset, you pay to boost it, and your name is on the ad account. Plaintiffs rarely stop at the creator.
Treat likeness rights as a license you must be able to prove per asset, per use, per state, not as a boilerplate line buried in a usage clause.
California: specificity or unenforceability
California’s new law on digital replicas targets how those rights are contracted. Proskauer’s analysis explains that a provision allowing a digital replica in place of work the person would otherwise have performed in person is unenforceable when it lacks a reasonably specific description of intended uses and the individual had no qualifying counsel or union representation. That applies when the individual was not represented by legal counsel or a union whose agreement addresses the issue. It covers new performances fixed on or after January 1, 2025.
The same analysis flags that the definition of digital replica is broader than generative AI alone, so it could reach ad work and text-to-speech services. For brands, the lesson is blunt. A vague “we may use your likeness in any technology now known or later developed” clause is exactly what this statute is built to defeat.
Tennessee: voice is property
Tennessee’s ELVIS Act matters for anyone using audio. According to Manatt’s summary, it extends protection to voice, whether the sound is the actual voice or a simulation of it. It also creates liability for distributing a tool whose primary purpose is producing a specific, identifiable person’s likeness or voice without authorization.
Think about what that means for a cloned voiceover. If your agency’s vendor produces “a creator-sounding” narrator for a product spot, the question is no longer whether the creator signed off on the video. It is whether they signed off on the voice.
New York: disclosure and consent, both
New York attacks the problem from two sides. New York’s Synthetic Performer law, signed in December 2025, requires a conspicuous disclosure in ads that use synthetic performers. Civil penalties apply for violations, and they escalate for repeat offenses, so confirm the current amounts with counsel. The same piece notes the Fashion Workers Act restricts AI-generated digital replicas of human fashion models without express consent.
Notice the stacking. Consent is a contract problem. Disclosure is a creative and media-buying problem. You need both controls, and they live in different teams. Our guide to AI virtual spokespeople covers the labeling side in more detail.
Washington: the newest entrant
Washington’s amended statute adds a cause of action for a “forged digital likeness.” Davis Wright Tremaine reports that the law takes effect June 10, 2026. It defines the term narrowly: a representation that is indistinguishable from genuine, misrepresents the person, and is likely to deceive a reasonable person.
That narrow definition is a partial comfort. Still, the same analysis says the law reaches use in advertising and on merchandise, regardless of whether the use is for profit. It also leaves open questions, such as whether a disclaimer would be enough. Until courts answer, assume a label helps but does not immunize.
Where creator contracts usually fail
Most influencer agreements were drafted to cover content ownership and usage windows. They were not drafted for synthetic reuse. Four gaps show up again and again.
- Vague AI language. “Edit, modify and adapt” does not describe voice cloning or face swaps. Under California’s approach, vagueness is the defect.
- No per-use scope. Territory, term, channel and media type should be stated, not implied. See how territory and term gaps compound across markets.
- Missing representation record. If the creator had no counsel, the commercial terms need to be clear and conspicuous. Keep proof of that.
- Vendor blind spots. Your editing studio, dubbing tool or avatar provider may be the party generating the replica. Your contract must flow down to them.
A clause checklist you can hand to counsel
This is operational guidance, not legal advice. Have a lawyer admitted in the relevant states review final language.
- Define “digital replica” broadly. Include face, body, voice, mannerisms and synthetic derivatives, and say whether each is permitted or prohibited.
- List intended uses. Name the campaigns, formats and channels. Anything not listed needs a new written approval.
- Separate consent tiers. Standard usage rights, AI-assisted editing, and full synthetic replication should be distinct opt-ins with distinct fees.
- Set a term and a sunset. Specify what happens to trained models, voice files and derivative assets when the license ends. The trade-offs are laid out in perpetual versus time-limited licensing.
- Add a disclosure covenant. Require labeling wherever a synthetic performer appears, and assign who owns that task.
- Flow down to vendors. Require subcontractors to follow the same consent limits and to delete likeness data on request.
- Allocate indemnity. Decide who pays when a use exceeds the license, and check that your insurance does not exclude AI claims.
For deeper drafting on the generative piece, see our breakdown of AI usage clauses.
Do you need a different contract for every state?
Not usually. The efficient approach is to draft to the strictest standard and apply it everywhere. Specific use descriptions, express consent for replicas, a disclosure duty and vendor flow-down satisfy the logic of all four states above.
Where you do need to tier: minors, deceased personalities, and campaigns targeting a single state. Those deserve a human legal review before launch. Minors in particular raise their own consent problems, covered in our piece on minor consent gaps.
One more habit pays off: log every approval. When a dispute arrives, the brand with a dated record of scope and consent per asset negotiates from strength.
Next step: pull your five highest-spend creator agreements this week and mark every clause that mentions AI, editing or “future technology.” Anything that cannot name a specific use gets rewritten before the next flight.
FAQs
What is a right of publicity?
It is a person’s legal control over commercial use of their name, image, voice and likeness. It is defined state by state, so scope, duration and remedies vary.
Does a creator’s signature on a standard usage agreement cover AI replicas?
Often not. Under California’s digital replica law, a replica provision without a reasonably specific description of intended uses can be unenforceable if the creator lacked qualifying representation. Spell out replica uses separately.
Does Tennessee’s ELVIS Act cover voice clones in ads?
Yes, the act protects voice even when the sound is a simulation of the person’s voice. Brands using AI voiceovers that imitate a creator need explicit voice consent.
What must brands disclose in New York?
Ads using synthetic performers must carry a conspicuous disclosure. Civil penalties apply and escalate for repeat violations, so have counsel confirm the current amounts.
When does Washington’s digital likeness law take effect?
Davis Wright Tremaine reports the amendments take effect June 10, 2026. The statute covers a “forged digital likeness” used in advertising or on goods.
Is the brand or the creator liable for an unauthorized likeness use?
Potentially both. The party that publishes or pays for the ad is a likely defendant, so indemnities, vendor controls and insurance review matter. See our overview of creator deal risk for context.
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