The right of publicity can look simple on the surface: someone used a person’s name, face, voice, or identity to sell something, and now there’s a legal problem. In real disputes, though, these claims often get complicated fast.
That is especially true when the use appears in ads, social posts, branded content, product pages, influencer campaigns, video clips, or AI-generated media. A claim may still be very real, but the facts that strengthen it can get blurred by missing screenshots, mixed messages about consent, or confusion about whether the use was commercial, expressive, or both.
If you’re new to this area, it may help to start with a broader overview of how publicity rights generally work. This post takes the next step and focuses on five mistakes that often make an otherwise strong claim harder to prove, harder to value, or harder to resolve.
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In general terms, the right of publicity protects against the unauthorized commercial use of a person’s identity. That often includes a name, likeness, voice, signature, or other recognizable aspects of persona, but the exact scope depends heavily on state law. The Legal Information Institute at Cornell notes that these rights are governed largely by state statutory and common law, which is one reason outcomes can vary from one jurisdiction to another.
California is often one of the first examples lawyers look to because its statute is detailed and frequently litigated. Under California Civil Code § 3344, liability can arise when someone knowingly uses another person’s “name, voice, signature, photograph, or likeness” on products or in advertising without prior consent. The same statute also provides for the greater of $750 or actual damages, plus attributable profits in appropriate cases. New York’s framework is different, but it also recognizes publicity-related protections, including a postmortem right of publicity and rules addressing certain digital replicas under the state’s Right of Publicity Law.
That variation matters because a claim that sounds strong in plain English is not always strong in a particular court without the right facts, records, and legal framing.
One of the most common problems in publicity-rights disputes is simple: the content disappears.
A social post gets deleted. A paid ad stops running. A landing page changes. A story expires. A brand swaps out creative. A media buyer rotates campaign assets. By the time a claimant starts gathering proof, some of the best evidence may already be gone.
This becomes especially important in modern endorsement-style campaigns because the Federal Trade Commission treats a broad range of social content as endorsements, including tags, likes, and similar signals in the right context. The FTC’s guidance for influencers explains that endorsements can include social media content where a material connection exists, and disclosures have to be hard to miss and placed with the endorsement itself, not buried in a profile or behind a “more” click. See the FTC’s Endorsement Guides FAQ and Disclosures 101 for Social Media Influencers.
Why does that matter for a publicity claim? Because many unauthorized uses appear in content that tries to create the impression of affiliation or endorsement. If that content vanishes, proving the exact impression presented to the audience becomes harder.
Helpful evidence often includes: