Document Type
Essay
Publication Date
2025
Publication
Akron Law Review
Volume
58
Abbreviation
Akron L. Rev.
First Page
445
Abstract
The right of publicity grants individuals control over the commercial use of their identity, particularly name, image, and likeness. Currently, publicity laws are a fragmented patchwork of state statutes and case law, leading to frequent calls for reform, including the establishment of a federal right of publicity. This issue has gained renewed urgency amid the rise of generative artificial intelligence and deepfake technologies. In response, Congress has introduced multiple bipartisan proposals—most prominently, the Senate’s No FAKES Act and the House’s No AI FRAUD Act—that seek to create federal protections against unauthorized digital replicas of likeness, voice, and other aspects of identity. Both bills remain in flux, but together they mark a significant step toward nationalizing publicity rights in the AI era.
While the right of publicity is typically a civil cause of action, its potential intersection with criminal law remains largely unexplored. This Essay argues that the rise of what it terms AI-driven “generative identity theft”—the mass technological manipulation of human identity—demands reconsideration of enforcement mechanisms. In particular, narrowly tailored criminal penalties may serve as a useful complement to civil remedies, deterring malicious uses of deepfakes that inflict reputational, economic, and democratic harms. Although expanding criminal liability in this context raises familiar concerns about overreach and free expression, the threat posed by generative identity theft makes the case for limited, carefully crafted criminal enforcement as part of the expanding publicity rights framework.