There is no federal right of publicity. One state-by-state guide puts it bluntly: protection changes at every state line. For a brand running UGC ads nationally, that means one customer video can be fine in Texas and a lawsuit in California. Right of publicity laws by state are now a media-planning problem, not just a legal footnote.
Why UGC ads get brands into trouble
UGC feels informal, so teams treat it informally. A customer posts a video, someone in the social team replies “love this, can we use it?” and the clip ends up in a paid Meta or TikTok campaign two weeks later.
That is the exposure. Nolo explains that the right of publicity covers commercial exploitation of a person’s name, image or persona. It also notes that the right is not only for celebrities. Anyone whose image sells a product may bring a claim. Organic reposting and paid amplification are different legal acts.
Platform terms do not fix this either. A creator granting TikTok a license to display a video does not grant your brand a license to run it as an ad. Neither does a customer’s “yes” in a comment thread, and neither does a hashtag. The people in the frame matter too. A customer’s friend, child or roommate who appears in the video never agreed to anything.
Posting a video organically and paying to run it as an ad are two different uses. Consent for the first rarely covers the second.
The state map: what actually differs
You do not need to memorize fifty regimes. You need to know the buckets and the outliers. According to the same state-by-state map, more than 30 states recognize some form of the right, and roughly two dozen do so by statute. States fall into four groups:
- Statute plus common law: California, Ohio, Indiana, Texas and Florida, among others. Plaintiffs get two routes to a claim.
- Statute only: New York confines the claim to its Civil Rights Law.
- Common law only: Georgia, Missouri, New Jersey, Michigan and Connecticut, for example. Enforceable, but you have to read case law to know the contours.
- Little or no recognition: plaintiffs fall back on privacy or unfair-competition theories.
Don’t read that last bucket as a safe harbor. Federal false endorsement claims under the Lanham Act can still reach a use that implies someone sponsors your product, and the same guide flags that route.
The differences that move your risk are specific. Does the right survive death, and for how long? Does it cover voice and mannerisms, or only name and photo? What damages are available? The guide’s table lists post-mortem terms such as 60 years in Ohio and 50 years in Texas, and notes Tennessee’s ELVIS Act extends protection to voice against AI imitation. Which state’s law applies usually turns on where the person lives, or lived. So the customer’s home address matters more than where you buy media.
California and New York: the two you cannot skip
Most national campaigns reach both, and both have teeth.
Under California Civil Code 3344, a violator owes the greater of $750 or actual damages, plus profits attributable to the use. Punitive damages are possible, and the prevailing party gets attorney’s fees and costs. That fee-shifting is what makes small-dollar UGC misuse worth a plaintiff’s lawyer’s time. Even a lone micro-influencer clip can attract a demand letter.
New York is moving fast on AI. Skadden’s analysis of two newly enacted laws describes a conspicuous disclosure requirement when an ad uses a synthetic performer, with civil penalties of $1,000 for a first violation and $5,000 for later ones. It also describes an expanded right of publicity for deceased personalities, including their digital replicas. The disclosure law takes effect 180 days after enactment, and Skadden notes it does not specify the form, language, placement or size of the disclosure. Ambiguity like that is a reason to over-disclose, not to wait.
Why does this matter for UGC? Because brands increasingly edit, dub, translate or regenerate customer clips with AI. Once a face or voice is synthesized, you have left “reposting” territory entirely. We covered the creative side of that risk in our piece on agentic AI ad creative.
A pre-rollout audit you can run in a week
Treat this like a creative QA pass, not a legal fire drill. Pull every UGC asset slated for paid use and work through it in order.
- Inventory by asset. Log the creator handle, every identifiable person on screen, any audible voice, and any third-party names or logos. Include background figures.
- Match each asset to a written license. Look for explicit paid-media, geography and duration terms. Our guide to a creator licensing rights audit walks through the paid media gap in detail.
- Check minors and bystanders. No release means the clip is out, or the person is cropped or blurred. Nolo’s guidance is that models and persons in ads sign consent or release agreements, and a parent’s signature matters when a child appears.
- Flag AI edits. Any synthetic voice, face swap, lip-sync dub or generated “customer” goes on a separate list for disclosure review in New York and for replica consent everywhere.
- Screen for deceased or famous people. A viral clip featuring a late celebrity or athlete is a post-mortem rights problem. Our note on athlete NIL rights shows how fast these claims escalate.
- Confirm geography. If the license covers “US,” fine. If it covers one region, geo-fence the ad set or get an expansion.
Sound tedious? It is. But the alternative is pulling a live national campaign after a cease-and-desist, which costs far more than a week of review.
Contract language that does the heavy lifting
Audits catch problems. Contracts prevent them. For every UGC source, whether a paid creator or a customer who replies to your rights-request DM, you want a license that names paid social, whitelisting or dark posting, derivative edits, and AI-assisted modification as separate grants.
Be careful with indemnity. A creator who warrants they have releases from everyone in the video is helpful, but only if they are able to pay. For rank-and-file customers, indemnity is nearly worthless, so your release process has to carry the weight. Read our breakdown of caption clauses and the indemnity gap before you rely on boilerplate.
Two more habits pay off:
- Store consent as data. A screenshot of a DM is weak evidence. Use a rights-management tool or a simple release form tied to an asset ID so you can pull a campaign in hours.
- Set an expiry. Licenses with end dates keep old clips from running forever. Build a takedown calendar.
Don’t forget the testimonial rules
Publicity rights are about consent to appear. Separately, the FTC’s endorsements and reviews guidance includes a Rule on the Use of Consumer Reviews and Testimonials, which addresses the problem of fake and false consumer reviews and testimonials. A UGC clip can be fully licensed and still be a deceptive testimonial if the speaker never used the product or was incentivized without disclosure. Run both checks on the same pass. If your program runs continuously, see how we handle always-on UGC programs.
A licensed clip is not automatically a lawful ad. Consent covers the face. The FTC covers the claim.
Next step: before your next national flight, export every UGC ad in the plan into one spreadsheet and mark each with its release status, AI-edit flag and licensed geography. Anything with a blank cell does not ship.
FAQs
Is there a federal right of publicity law?
No. Protection comes from state statutes and common law. Federal law fills only small gaps, such as Lanham Act false endorsement claims, and a proposed federal digital replica bill (the NO FAKES Act) was still only a bill when the cited guide was published.
Do I need permission to run a customer’s social post as a paid ad?
Yes, get explicit written permission for paid use. Organic reposting and advertising are different uses, and a “sure, go ahead” comment rarely specifies paid media, duration, geography or edits. A short release tied to the asset is the safer practice.
Which states carry the highest right of publicity risk for national UGC ads?
California and New York are the obvious priorities because of statutory damages, fee-shifting and new AI rules. Tennessee, Ohio, Texas, Indiana and Florida also have statutes. Common-law states can still produce enforceable claims, so a national rollout should meet the strictest standard.
Does the right of publicity apply to people who are not famous?
Yes. Nolo notes that any person whose name or image is used to sell products may claim misappropriation. Private customers and their family members are covered the same way as celebrities, though damages often differ.
Do AI-edited UGC ads create extra risk?
They do. New York now requires conspicuous disclosure of synthetic performers in ads, and several states are extending protection to voice and digital replicas. If you regenerate a face or voice, treat it as a new use requiring its own consent.
Does the creator’s indemnity protect my brand?
Only partly. It helps if the creator is solvent and actually obtained releases from everyone on screen. It does not stop a claim against you as the advertiser, so your own release process remains the main defense.
Is this legal advice?
No. This is an operational overview for marketers. Have counsel licensed in the relevant states review your release templates and any AI-assisted creative before launch.
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