Generative tools make it trivial to spin up a “fictional” character. But fictional is a claim about your intent, not about what lands on screen — and a synthetic face can resolve onto a real person's likeness by accident. When it does, three legal doctrines come into play.
1. Right of publicity
Real people — and especially public figures — control the commercial use of their likeness. The exposure is highest when two things are true at once: the character carries a recognisable likeness, and you are monetising it — selling a product, running ads, or building a brand around the character. Unauthorised commercial appropriation is the core claim.
Two things surprise teams here. First, in the U.S. there is no single federal right of publicity; it is state law, ranging from robust (California, New York, Tennessee) to nonexistent. Second, “likeness” is broader than a photo-match. Courts have found a person's identity evoked through a distinctive voice (Midler v. Ford) or through unmistakable association alone, with no name and no face (White v. Samsung). A character that “just happens to look like” someone can still implicate it.
2. Defamation
If the character is portrayed as malicious, incompetent, criminal, or otherwise disreputable, a real person who is identifiable in it can claim the portrayal harms their real-world reputation. Defamation generally needs a false statement of fact, communicated to others, that is “of and concerning” the plaintiff. Labelling something fiction is not an automatic shield: the question is whether reasonable viewers would understand the character as referring to the real person.
3. The “reasonable person” test
Across both doctrines the pivotal question is the same — would a reasonable audience conclude the character actually references a real person, or read it as coincidence? Context decides it. A generic resemblance is one thing; a resemblance plus the person's profession, setting, mannerisms, or storyline is another. The more corroborating signals stack up, the more a coincidence reads as a reference.
The AI-specific wrinkle: the law is catching up fast
A wave of new law targets synthetic likeness directly. Tennessee's ELVIS Act (2024) extends protection to voice and likeness with AI explicitly in scope; California's 2024 digital-replica laws regulate AI replicas of performers; and the proposed federal NO FAKES Act would create a nationwide digital-replication right. The direction of travel is clear: “the model generated it” is not shaping up to be a defence.
What to actually do
You cannot eyeball this at the scale modern pipelines produce, and “we didn't intend it” does not help much after publication. Three practical moves:
- Screen before you publish. Check generated and user-generated content for real-person resemblance — and for copyrighted characters — as a step in your pipeline, not a fire drill after a complaint.
- Treat a match as a lead, not a verdict. The technology is probabilistic and over-eager to put a name to a face. A human should make the call, with the evidence in front of them.
- Keep the receipt. A timestamped record of what you screened, and what you found, is itself part of a diligence defence.