Right of Publicity in the Social Media Era
Angel Fraley clicked "like" on Rosetta Stone's Facebook page to get to a free software demo, and the next thing her friends saw, attached to the language software company's logo on their own news feeds, was a sentence built from her own account name: "Angel Frolicker likes Rosetta Stone." Facebook's Sponsored Stories program did this automatically, at scale, to every user whose ordinary activity on the platform touched an advertiser's page, with no separate payment and, in Fraley's telling, no meaningful way to opt out. Nobody involved was a celebrity. That was the point of the feature: it worked precisely because an ordinary user's own name, attached to a friend's feed, reads as more persuasive than the same words from a stranger or a brand.
Fraley v. Facebook, Inc., 830 F. Supp. 2d 785 (N.D. Cal. 2011), let the resulting class action survive Facebook's motion to dismiss, rejecting the company's argument that displaying a user's endorsement to her own friends counted as newsworthy speech rather than commercial exploitation of her identity under California's right of publicity statute. The claim never reached a verdict on the merits; Facebook settled for twenty million dollars, a figure that drew a formal objection in May 2013 from the consumer advocacy group Public Citizen, representing six parents in California, New York, Tennessee and Virginia whose own minor children were class members, arguing the deal undervalued claims that could have run well into the hundreds of dollars per person under the statute and gave those minors too little separate protection. A federal judge approved the settlement anyway in August 2013, and when class counsel later tried to condition each of Public Citizen's roughly fifteen objecting clients' own appeals on posting a bond of thirty two thousand dollars apiece, nearly half a million dollars in the aggregate, the district court sided with the objectors and refused to require it. The Ninth Circuit affirmed the settlement's approval in January 2016, closing out litigation that had run for nearly five years without ever producing a judgment on whether Facebook's use of ordinary users' names and photos actually violated their statutory rights. What the litigation established, well short of any final judgment on liability, is that a statute built around movie stars and their names on cereal boxes reaches a fact pattern its drafters could not have pictured: a platform's own product design turning millions of ordinary users into unpaid, unwitting endorsers of whatever their friends happened to click.
California's own courts had already built a doctrine for weighing a person's publicity interest against a speaker's expressive one, asking whether a work adds enough of its own transformative content to a person's likeness to earn First Amendment protection. That doctrine assumes a defendant who created something, a drawing, a film, a song, out of a plaintiff's identity. Sponsored Stories created nothing; it reproduced a user's actual name and actual photograph verbatim and sold the reproduction as an ad. The transformative use question a portrait artist has to answer never comes up for a feature that adds no expression of its own at all, which is one reason Fraley's claim survived dismissal on ordinary right of publicity grounds without the parties spending much time arguing about transformation one way or the other.
New York recognizes no common law right of publicity at all, only the narrow statutory tort in Civil Rights Law sections 50 and 51, and it took a video game to show exactly how much narrower that makes the threshold question a plaintiff has to clear. Lohan v. Take-Two Interactive Software, Inc., 31 N.Y.3d 111 (2018), bundled three separate claims of appropriation into a single suit. One was a playable character, Lacey Jonas, that Lindsay Lohan argued was modeled on her own persona and sent on a mission set partly inside a fictional West Hollywood hotel resembling the Chateau Marmont, where Lohan herself had once lived. The other two had nothing to do with that character or that hotel: a separate promotional image of a bikini-clad blonde woman on a beach, and a separate image referencing a stop-and-frisk encounter. Lohan argued all three traded on her own recognizable identity.
New York's Court of Appeals agreed a video game avatar can count as a statutory "portrait," rejecting Take-Two's broader argument that the medium itself was categorically exempt, but affirmed dismissal of every one of the three claims anyway, calling each depiction an indistinct, satirical representation not reasonably identifiable as the plaintiff. An ordinary social media user suing in New York over an unauthorized use of her own photograph does not get to ask a jury whether the use was transformative or newsworthy the way California's doctrine allows; she has to convince a court first that what was used is recognizably her, a threshold California's broader common law claim does not impose in the same way.
Voice raises the newest version of the same mismatch, because a cloned voice needs no photograph and no name to work. Tennessee answered it directly. The Ensuring Likeness Voice and Image Security Act, signed March 21, 2024, and effective that July, amended the state's decades old Personal Rights Protection Act to add voice as a protected property right alongside name, photograph, and likeness, reaching an unauthorized AI generated simulation of a person's voice used commercially whether or not any photograph or name appears alongside it. A violator faces actual damages and any profits attributable to the infringement in a civil suit, plus criminal exposure as a Class A misdemeanor; the statute reserves treble damages for the narrower case of a knowing violation against a member of the armed forces specifically. Nothing comparable exists in most other states, where a synthetic voice clone selling a product has to be shoehorned into a publicity statute drafted decades before generative audio existed, if the state's statute reaches voice at all.
No federal statute fills the gap between these approaches, and none is close to filling it yet. The Nurture Originals, Foster Art, and Keep Entertainment Safe Act, introduced in the Senate on May 20, 2026 as its fourth version since 2023, would create a federal right against unauthorized digital replicas of a person's voice or visual likeness, running for the individual's own lifetime and, for a further period, her estate's. The Judiciary Committee ordered it reported favorably on June 18, 2026, and it now sits on the Senate's own legislative calendar, the first version of the bill ever to get that far; the four attempts before it died in committee without a vote at all, and no version, this one included, has yet reached a floor vote in either chamber. It has not been enacted.