Right of Publicity in Texas: When Someone Uses Your Name, Image, or Likeness Without Permission

By Hank FasthoffJuly 6, 2026

A right of publicity claim arises when someone uses another person's name, image, likeness, voice, or other identifying characteristic for commercial benefit without that person's consent. It protects the economic value of a person's identity, the principle being that individuals have the right to control how their personal attributes are exploited commercially and to benefit from that exploitation.

Social media businesses routinely use customer photos in marketing without written releases. Influencers discover their images in advertisements for products they've never endorsed. AI tools generate synthetic likenesses of real people for commercial content without permission or compensation. And the music and entertainment industries face a growing wave of AI-generated vocal and visual deepfakes that replicate artists' identities with increasing accuracy. For anyone whose name, face, or voice has commercial value, understanding how the right of publicity works in Texas is essential.

Texas Common Law Right of Publicity

Texas doesn't have a right of publicity statute. Unlike California (Civil Code § 3344), New York (Civil Rights Law §§ 50-51), Tennessee (the ELVIS Act, 2024), and Indiana (IC § 32-36), Texas relies entirely on common law to protect an individual's commercial identity.

Under Texas common law, a right of publicity claim requires four elements. First, the defendant used the plaintiff's name, image, likeness, or other identifying characteristic. "Other identifying characteristic" can include voice, signature, nickname, or any attribute that's sufficiently associated with the individual that the public would recognize the person from it. Second, the use was for the defendant's commercial advantage, meaning the defendant used the plaintiff's identity to sell a product, promote a service, attract attention to commercial content, or derive some other economic benefit. Third, the plaintiff didn't consent. Consent can be express (a written release or license) or implied (conduct that reasonably indicates willingness to participate), but it must exist. Silence isn't consent. Fourth, the unauthorized use caused injury to the plaintiff. Injury can include economic harm (lost endorsement revenue, diminished commercial value of the plaintiff's identity) and non-economic harm (embarrassment, reputational damage from association with the product or message).

What It Protects and What It Doesn't

Right of publicity protects against the unauthorized commercial exploitation of identity. It doesn't give individuals a veto over every use of their name or likeness.

Commercial use is the core target. Using someone's photograph in a product advertisement, placing a celebrity's name on merchandise, featuring someone's likeness in marketing materials without permission, and creating advertisements that mimic a recognizable person's voice or appearance are all actionable.

Editorial and newsworthy use is generally protected by the First Amendment. Publishing a photograph of a public figure in a news article, referencing a person by name in a book or documentary, and depicting a real person in a work of creative expression (a painting, a novel, a biographical film) are typically not actionable, because the First Amendment protects speech about public figures and issues of public concern.

Where commercial and editorial use overlap is where most of the litigation in this area arises. An advertisement disguised as editorial content (a "sponsored post" on social media that looks like an organic recommendation) may cross the line. A work of art that incorporates a celebrity's image but is sold primarily for its commercial appeal may face a right of publicity challenge. Courts evaluate each case on its facts, balancing the individual's interest in controlling commercial exploitation against the public's interest in free expression.

In Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), the U.S. Supreme Court recognized that the right of publicity can override First Amendment protections when a broadcaster appropriates the "entire act" of a performer (in that case, a human cannonball performer whose entire act was broadcast on television without consent). The Court held that the First Amendment didn't give the broadcaster the right to appropriate the performer's entire act, noting that the right of publicity serves both the performer's economic interest and the public's interest in encouraging performance.

Voice and Likeness Imitation

Right of publicity extends beyond literal use of a person's photograph or name. Imitating a recognizable person's voice or visual appearance for commercial purposes can also be actionable.

In Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988), the Ninth Circuit held that Ford's use of a sound-alike singer to imitate Bette Midler's voice in a commercial, after Midler herself declined the endorsement, violated Midler's right of publicity. In Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992), the court reached the same conclusion when Frito-Lay used a voice imitator to mimic Tom Waits's distinctive singing voice in a Doritos commercial.

These cases establish that the right of publicity protects the distinctive, recognizable qualities of a person's identity, not just the literal reproduction of their image. If the defendant's use is designed to evoke the plaintiff's identity in the consumer's mind, that the defendant used an imitator rather than the plaintiff's voice or photograph isn't a defense.

AI-Generated Likenesses and Deepfakes

AI's ability to generate synthetic but realistic reproductions of a person's voice, face, and physical appearance has created a new category of right of publicity exposure. A deepfake video that places a real person's face on a synthetic body, an AI voice clone that reproduces a singer's vocal characteristics, or a generated image that creates a photorealistic depiction of a real individual all implicate the right of publicity if used commercially without consent.

Tennessee's ELVIS Act (2024) was the first state law to address AI-generated commercial exploitation of identity directly, prohibiting the use of an individual's voice, image, or likeness through AI for commercial purposes without consent. California amended its publicity rights statute in 2024 to include biometric voice and image protections. Texas SB 441 (2025) addresses non-consensual intimate deepfakes but doesn't broadly cover commercial exploitation of identity through AI.

Because Texas relies on common law, the existing right of publicity framework should apply to AI-generated likenesses to the same extent it applies to traditional reproductions. If an AI tool generates a commercial advertisement featuring a synthetic but recognizable reproduction of a real person's face or voice without consent, the elements of the common law claim are satisfied. The commercial use was unauthorized, it appropriated the plaintiff's identity, and it caused injury. Whether Texas courts will apply common law principles to AI-generated content in the same way they apply them to traditional appropriation is an open question that hasn't yet been tested, but the underlying legal framework supports it.

Post-Mortem Rights

Whether the right of publicity survives the death of the individual varies by state and is unsettled in Texas.

California's statute (Civil Code § 3344.1) provides a post-mortem right of publicity lasting 70 years after death. Indiana's statute (IC § 32-36-1-8) provides 100 years. Tennessee's statute provides protection for 10 years after death, extended by the ELVIS Act. These statutes allow the estates of deceased celebrities to control (and profit from) the commercial use of the deceased individual's identity.

Texas common law hasn't definitively resolved whether the right of publicity survives death. Some Texas courts have recognized that personal tort claims (which the right of publicity resembles) don't survive death under the Texas Survival Statute (TCPRC § 71.021) unless the claim is for property damage. If the right of publicity is characterized as a personal tort, it may not survive in Texas. If it's characterized as a property right (which is how California and Indiana treat it), it should be descendible and enforceable by the estate.

For individuals with significant commercial identity value in Texas (artists, athletes, public figures, influencers), the uncertainty creates a planning problem. Estate plans should address the commercial exploitation of the individual's identity after death, and the individual should consider registering trademarks in their name and likeness during their lifetime, because trademark rights are descendible and enforceable by the estate regardless of how Texas resolves the post-mortem publicity question.

Intersection with Trademark Law

When a person's name or likeness functions as a brand identifier (an artist whose name identifies their music, an influencer whose image identifies their product line, a chef whose name identifies their restaurant), right of publicity claims can be supplemented by trademark claims under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).

Section 43(a) prohibits false designation of origin and false endorsement. If someone uses a recognizable person's name or likeness in a way that creates a false impression that the person endorses the product, the person can assert a Lanham Act claim in addition to (or instead of) a state right of publicity claim. Lanham Act claims offer federal court jurisdiction, enhanced damages, and nationwide relief, which may be more effective than a common law publicity claim limited to Texas.

Registering a trademark in your own name (for goods or services you provide) creates an additional enforcement tool and removes the uncertainty around Texas's unsettled post-mortem publicity law. Trademark rights survive as long as the mark is used in commerce and maintained, which means they outlast the individual and provide the estate with a federally enforceable right.

Practical Recommendations

Use written releases for every person whose name, image, or likeness appears in your marketing materials, advertisements, social media content, testimonials, or promotional materials. A release should identify the person, describe the permitted use (with specificity), define the scope (territory, duration, media), and be signed before the content is published. Verbal permission isn't sufficient for commercial use.

If your identity has commercial value (you're an artist, athlete, influencer, public figure, or brand spokesperson), register your name as a trademark with the USPTO for the goods or services you provide. Trademark registration creates a federally enforceable right that supplements common law publicity rights, provides nationwide protection, and survives after death.

Address commercial exploitation of your identity in your estate plan. Texas hasn't resolved whether the right of publicity survives death, and without estate planning that specifically addresses your name, image, and likeness, your heirs may lack the ability to control or monetize your identity after you're gone.

Monitor for unauthorized use of your identity, including AI-generated content. Reverse image searches, voice recognition monitoring, and social media alerts can identify unauthorized commercial uses of your likeness before they cause significant harm.

If you discover unauthorized commercial use of your name, image, voice, or likeness, contact your attorney promptly. Depending on the nature of the use, you may have claims under Texas common law right of publicity, the Lanham Act (false endorsement), and applicable state privacy statutes, each of which provides different remedies and different procedural advantages.