AI can generate digital replicas of celebrities, which may imply an endorsement of a product or service where none exists. Just recently, Tom Hanks posted on Instagram to let his fans know that a dental insurance used his likeness to promote their services was a fake, AI-generated image and he is not associated with the company. Other celebrities have been following suit.

In response, Senator Amy Klobuchar of Minnesota and others released a bipartisan draft of the Nurture Originals, Foster Art, and Keep Entertainment Safe Act of 2023 (known as the No Fakes Act). The bill would create a new right to control digital copies of a person's image, voice, and likeness. Such protection would last 70 years after the individual's death. Violators of the Act could be liable for $5,000 per violation.

This bill would have major implications for rights of publicity, which is currently determined by state law. Some states, like New York, California, and Tennessee, have strong protections for rights of publicity due to their proximity to the entertainment and music industries. In particular, the portion of the Act that addresses posthumous rights is unique compared to most states' rights of publicity laws, though it is in line with New York and California, which provide 40 and 70 years of post-death rights, respectively.  Some argue that this Act may run afoul of First Amendment rights and limits free speech, though there are some exceptions built into the Act for documentaries and parody. 

As AI further develops it will run into areas of the law that have not fully adapted to the times, rights of publicity being one of them. It will be interesting to see how this Act develops and is further refined and revised.