Right of Publicity in Texas for Names, Images, and Digital Replicas

By Hank FasthoffJuly 6, 2026

Texas protects commercial identity through two bodies of law. A living person may bring a common law misappropriation claim when someone exploits the value associated with the person's name, image, or likeness, and Texas Property Code Chapter 26 separately protects a deceased individual's name, voice, signature, photograph, and likeness. The governing rule turns on whether the person is living, which identity attribute the defendant used, and how.

That distinction has become more important as businesses build advertisements from social media posts and use generative tools to produce synthetic voices, faces, and performances. A recognizable identity can support a claim even when the advertiser never copied a conventional headshot. Texas law, however, doesn't treat every reference to a person as commercial appropriation.

The Texas Claim for a Living Person

Leading federal decisions applying Texas law describe three elements. First, the defendant must appropriate the plaintiff's name or likeness for the value associated with it rather than for an incidental or newsworthy purpose. Second, the plaintiff must be identifiable from the publication. Third, the defendant must gain some advantage or benefit.

In Brown v. Ames, 201 F.3d 654 (5th Cir. 2000), the court applied that test to claims by musical performers whose names and images appeared on recordings and promotional material. The plaintiffs needed no proof that the defendants earned a profit from the use, since an advantage or benefit can satisfy the third element. The same decision held that the Copyright Act didn't preempt claims based on the defendants' separate use of the performers' names and likenesses because those identity attributes fall outside copyright's subject matter. A claim based on the performer's persona can proceed separately, while a claim directed at the song, recording, or performance may face preemption.

Meadows v. Hartford Life Insurance Co., 492 F.3d 634 (5th Cir. 2007), shows the claim's limit. An insurer used an employee's identity to issue and administer a life insurance policy owned by his employer, and the court found no actionable appropriation because the defendants hadn't exploited any unique quality, notoriety, skill, reputation, or goodwill associated with him. Commercial activity surrounding personal information alone didn't satisfy the Texas test.

Consent is central to the factual analysis. A written release supplies the best evidence of authorization and scope, while oral statements, conduct, course of dealing, and the language of an existing contract can also produce a consent dispute. The common law cases support no categorical rule that only written permission counts.

Commercial Value and Identification

Advertising presents the most familiar exposure. A product page that features a recognizable person can imply that the person endorses the product, merchandise bearing a performer's name or image can trade on the audience that the performer developed, and a paid social post can use a customer's identity to make a sales message look like an independent recommendation.

Identifiability depends on the surrounding facts. A person can be identifiable without a full name or conventional portrait when those facts point to that person. Yet the reported Texas decisions address a living person's name, image, or likeness most directly, and a claim based only on a voice, signature, nickname, gesture, or style requires closer analysis under those decisions and any other law that applies.

Damages also require proof. Brown recognized general damages and proven special damages while rejecting awards based on speculation, and useful evidence can include endorsement history, licensing rates, lost opportunities, the reach and duration of the campaign, the defendant's sales, and consumer reaction. Early preservation of advertisements, analytics, invoices, creative files, and communications can determine whether a claimant can prove value and use.

News, Commentary, and Expressive Uses

Texas common law places incidental and newsworthy uses outside the first element. For deceased individuals, Chapter 26 supplies more detailed rules, and Section 26.012 identifies permitted uses in plays, books, films, radio and television programs, magazine and newspaper articles, material that is primarily political or newsworthy, and single original works of fine art. It also covers media reports about news, public affairs, sports events, and political campaigns.

Use determines the First Amendment analysis. In Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), a television station recorded and broadcast a performer's entire human cannonball act. The Supreme Court held that Ohio could allow the performer's claim despite the broadcaster's First Amendment defense. That ruling addressed appropriation of the entire performance that the plaintiff sold to the public, while ordinary reporting, commentary, criticism, and biographical treatment present different interests.

Labeling an advertisement as editorial content won't control the result. Courts examine what the communication does, how it uses the identity, and whether it promotes a separate product or service, and a court can treat the same photograph differently in a news report and in an advertisement for an unrelated product.

Voice Imitation and Digital Replicas

Federal appellate decisions applying California law have recognized claims based on deliberate imitation of a distinctive singing voice in advertising. Those decisions offer useful comparisons, and they don't establish the elements of Texas common law. For living people, the reported Texas decisions focus on name, image, and likeness.

Texas considered a broader digital replica statute in 2025. SB 1960 would have established a property right in an individual's voice and visual likeness as used in a highly realistic digital replica. It passed the Senate 31 to 0, and the House Judiciary and Civil Jurisprudence Committee left it pending on May 21, 2025, so its proposed written consent rules, platform duties, and private remedies never took effect.

SB 441 did take effect on September 1, 2025. It addresses sexually explicit deepfake media and artificial intimate visual material, including certain production, distribution, threats, platform duties, and civil remedies, and its coverage centers on intimate material rather than ordinary commercial advertising.

An unauthorized synthetic advertisement may support several existing claims, and the facts must fit each claim's elements. A visual replica that identifies a living person and exploits the value associated with that person may fit Texas common law, a cloned voice presents less settled ground under the reported Texas authorities, and a disclaimer that content was generated by artificial intelligence may affect consumer perception without supplying permission from the person depicted.

Rights After Death Under Chapter 26

Texas resolved the central postmortem issue through Chapter 26. It establishes a property right in a deceased individual's name, voice, signature, photograph, or likeness when that identity attribute had commercial value at death or gains commercial value later. The chapter applies to a person who was alive on or after September 1, 1987, and to a person who died on or after January 1, 1937.

The owner may transfer all or part of the right by contract, trust, or testamentary document before or after death. When no governing instrument controls, Section 26.005 assigns ownership to specified surviving family members. The right generally permits control for 50 years after death, and it can expire after the first year when the individual made no disposition and no qualifying survivor exists.

During the first year after death, a rights owner generally must register a valid claim with the Secretary of State before exercising the right, and after the first year, an owner may exercise the right with or without registration. Registration also serves as prima facie evidence of a valid claim and can give the registered claim priority over a conflicting unregistered claim.

Subject to the permitted uses in Section 26.012, Chapter 26 requires written consent from a person entitled to exercise the right before another person uses the deceased individual's protected identity in connection with goods or to advertise, sell, or solicit goods or services. Section 26.013 provides the greater of proven damages or $2,500, attributable profits, any available exemplary damages, reasonable attorney's fees and expenses, and court costs.

Estate planning can identify the owner, scope, licensing authority, and revenue allocation before competing claims arise. A will or trust that specifically transfers the right provides the representative with a better starting point than a general reference to personal property.

False Endorsement and Trademark Rights

Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), addresses a different injury. It applies when a use in commerce is likely to confuse consumers about a person's affiliation, connection, association, sponsorship, or approval. A false endorsement claim turns on likely consumer confusion, while Texas misappropriation focuses on exploitation of identity value. One campaign can implicate both rules, but each claim keeps its own elements.

The federal remedies are substantial and conditional. 15 U.S.C. § 1117 allows profits, proven damages, and costs subject to equitable principles, a court can adjust a damages award according to the circumstances and within the statutory limit, and attorney's fees require an exceptional case.

Trademark registration can protect a personal name, signature, portrait, or other feature when it functions as a source identifier for specified goods or services. 15 U.S.C. § 1052(c) also requires written consent to register a mark that identifies a particular living individual. A registration strengthens the owner's rights in the mark for the listed goods or services. Its scope depends on trademark use and consumer perception rather than every use of the person's identity.

Releases and Licensing Terms

If you use a person's identity in advertising, you benefit from a written release signed before publication. The agreement can identify the protected attributes, the approved campaign, media, territory, term, compensation, edits, sublicensing, and any approval process, and a general release written for conventional photography may leave synthetic uses unresolved.

In a digital replica agreement, you can address voice cloning, face replacement, generated performances, model training, new outputs, alteration limits, security, deletion, audit evidence, and use after termination. You can also allocate responsibility for vendors and advertising platforms that receive the files.

Preserving the material before demanding removal can protect evidence of the disputed use. Screenshots alone may omit targeting, dates, reach, and video or audio, and a useful record includes the full advertisement, source URL, account identity, publication dates, audience information, engagement data, purchase link, and copies of communications with the advertiser or platform.

Texas offers meaningful remedies, and the claim starts with classification. Living people rely primarily on a narrow common law test, deceased individuals receive the specific property right and remedies in Chapter 26, and digital replicas can implicate those rules, false endorsement, contract rights, and laws aimed at intimate imagery. The strongest response identifies the person's status, the identity attribute, the commercial use, and the evidence before choosing a claim.