What a Cold War Television Drama Can Teach Us About Celebrity Impersonators
One episode of Peacock’s Cold War spies Ponies features an Elton John concert in Moscow. US Embassy employees are excited when they are told that in addition to performing at the concert, Elton John will be attending their private party.
It’s obvious to the TV audience that the show features an actor playing Elton John, and Peacock reportedly engaged with Elton John’s representatives before filming and airing the episode. But that’s not always what happens with celebrity impersonators.
What if, like the characters in Ponies, the viewers aren’t told that they are watching an impersonator? That’s concerning enough, but what if those using a film don’t know they are impersonating a famous – or even a not-so-famous – person?
That’s a big concern with AI-generated content. Because there’s no transparency about the source of the material it’s possible to impersonate someone without knowing it.
Suppose a business uses an AI tool to generate a voiceover, image, jingle, avatar, or photos for a social media campaign. They don’t ask for an Elton John impersonator or any type of impersonator. But the output may look like a real person. associated public relations issues.
If it looks like Elton John, someone might notice similarity. But what if the output looked like someone who is less well known – perhaps a lesser-known actor from Ponies or even you or me? If that were to happen, the business may be violating someone’s right of publicity.
This article discusses the right of publicity with a focus on the additional risks presented by AI-generated content.
What is the Right of Publicity?
The right of publicity is an individual’s right to control how their name, image, likeness, and persona are used by others. The concept of a right of publicity has been around since at least the early 20th century when New York passed it’s right of privacy law, which included a right of publicity.
However, the right still isn’t universally recognized and the scope of the right varies from state-to-state. There is no federal right of publicity, so a patchwork of state laws are involved in determining someone’s rights. Today, about half of the states have statutes recognizing the right of publicity, and 13 additional states recognize a common law right of publicity. But a dozen states still don’t have a right of publicity.
Traditionally, the right of publicity applied only to commercial uses of an individual’s identity. The right was personal to the individual and didn’t survive their death. However, some states now go further and protect non-commercial uses, and some provide post mortem protection. Most of the laws don’t require someone to be famous or a celebrity to have a right of publicity but many focus on commercial use.
What’s So Different About AI?
Before AI, it wasn’t hard for someone to determine if they had the right to use a photo. They typically could find out who took the photo or they could look for a copyright marking or attribution. If a person were recognizable in the photo, they could ask the photographer for a release. Without a release, they would know not to use the photo.
The problem with AI is that it can feel as if AI-created images come came from nowhere. It may seem as if the AI model isn’t a real person. Since under current copyright law interpretations, AI-generated content can’t be copyrighted, people think they can use the image.
The problem with this content is that there’s no way to know what source AI used to create an image. It could have come from a copyrighted photo and it could be using the image of a human model who didn’t consent to this type of use. And under most laws, intent isn’t an element of a right of publicity claim, so “I didn’t know” isn’t a defense.
The issue isn’t limited to AI-generated images – it can apply to music or voices. In 2024, after Scarlett Johansson declined to voice a ChatGPT product, OpenAI created a “Sky” voice that she said sounded “eerily similar” to hers. OpenAI claimed the voice wasn’t AI-generated, but rather, belonged to a different professional actress who was cast before OpenAI contacted Johansson. OpenAI removed Sky from its site, but this dispute demonstrates the challenges AI can present.
In 2023, TikTok user Ghostwriter977 used AI to create the song “Heart on My Sleeve” using vocals that resembled artists Drake and the Weeknd. The song’s lyrics reference artists, such as Selena Gomez and Justin Bieber who had connections with Drake or the Weeknd. The song, which was self-released on streaming platforms, received millions of views on streaming and social media.
These examples illustrate how easy it is to create AI impersonations, and the speed with which they can be distributed for profit, and the challenges associated with shutting down the unauthorized use of someone’s persona. So, it’s no surprise that celebrities have urged action to prevent unauthorized AI doppelgangers, and lawmakers have started to respond.
States Respond to AI-Generated Replicas
The ELVIS Act, adopted in 2024, protects artists from replicas (Tennessee Governor’s Office) — but only in Tennessee. The Elvis Act, signed into law in 2024, was enacted to address the impact of AI on music and to protect artists from the misuse of their voices through AI-generated replicas. The law was intended to protect both artists and the public from deepfakes and voice cloning.
Other states have enacted similar protections. For example, California’s AB 2602 requires that the performer have professional representation when negotiating a contract that allows use of AI generated images. The effect of the law is to move consent to AI-generated digital replicas from the fine print in contracts out into the open, so that artists are aware of the consequences of their consent to digital replicas.
The challenge with the current system is that because the laws were enacted at the state level, they aren’t uniform. Plus, by their nature, state laws are limited in geographic scope. This creates both a patchwork of rights and challenges in enforcement that require numerous lawsuits to try to stop AI replicas. Since AI replicas are distributed nationwide, it’s important that artists have a federal law to protect them. The US Copyright Office’s Report on Copyright and Artificial Intelligence agrees that “generative AI technology enables the production and dissemination of digital replicas at a speed and scale that calls for a national response.”
The NO FAKES ACT, first proposed in 2024, which recently left the Senate Committee, would create a federal property right for individuals to authorize the use of their voice or visual likeness, which individuals could license but not assign during their lifetime and which would have survived an artist’s death.
Subject to First Amendment limitations, the Act would hold companies liable for producing unauthorized digital replicas of an individual’s performance and holding platforms responsible for knowingly hosting unauthorized replicas. The new federal law would largely preempt future state law in the area, thereby pushing the focus onto developing a single, nationwide standard.
What Businesses Should Do Now
The NO FAKES Act would create a federal right relating to unauthorized digital replicas of a person’s voice and visual likeness. But since there are already state laws protecting the right of publicity, as well as digital replica specific laws like the ELVIS Act, businesses shouldn’t wait for Congress before evaluating their practices when it comes to AI.
AI is a valuable tool that can speed up many business processes, including speeding up the process of creating marketing materials. When a human designer designs an ad, they often won’t start from scratch. Rather, they start with a photo or drawing created by someone else and modify it to meet the business’ needs. Sometimes, it won’t resemble the original and other times, there will be significant similarities. As long as the business obtains a license to use the original art the designer started with and has acquired any rights the designer has to their additions, there’s unlikely to be a copyright issue.
AI changes the playing field. AI doesn’t always follow directions; sometimes it doesn’t use the exact image it’s told to use but instead analyzes the image and selects a similar one from its database. And when AI is asked to create an image out of nowhere – it has to come from something that AI has “learned,” and there’s no way for the user to determine the source.
A business should treat AI the same as a human designer. The business should obtain licenses to use art and ask AI to only modify that art – similar to what a human designer would do. One thing to watch out for is that the AI prompt must make it very clear that the AI is to use the exact artwork provided – not dredge something similar from its archives to use instead.
An attorney can help determine what licenses are required and may be able to help determine when an AI output is too close to a real person to use without consent – or when it’s impossible to determine the source of the materials. The producers of PONIES understood this and worked closely with Elton John’s representatives – even though the actor in the show was clearly an impersonator.
It will take a few additional steps and cost a little more money for businesses to attempt to ensure that AI bases its output on art for which the business owns a license. But it’s less expensive to take those steps than to risk takedown notices and lawsuits, not to mention the associated public relations issues.
© 2026 by Elizabeth A. Whitman
Any references to clients and their legal situations have been modified to protect client confidentiality.
DISCLAIMER: The content of this blog is for informational purposes only and does not provide legal advice to any person. No one should take any action regarding the information in this blog without first seeking the advice of an attorney. Neither reading this blog nor communication with Whitman Legal Solutions, LLC or Elizabeth A. Whitman creates an attorney-client relationship. No attorney-client relationship will exist with Whitman Legal Solutions, LLC or any attorney affiliated with it unless a written contract is signed by all parties.