Synthetic media that places a real person in fabricated scenarios raises well-established tort causes of action that do not require novel federal legislation to pursue.
I. Doctrinal Framing
The term "deepfake" describes synthetically generated or algorithmically manipulated audio, video, or images that depict a real person saying or doing something the person never said or did. The technology is no longer esoteric. Consumer-grade tools can generate convincing synthetic video from minutes of source footage, and the resulting content — ranging from nonconsensual intimate imagery to fabricated endorsements to defamatory political content — is finding its way into litigation.
Plaintiffs' counsel evaluating deepfake cases do not need to wait for federal legislation to mature. Existing right of publicity doctrine under Florida and Alabama law, intentional infliction of emotional distress, false light invasion of privacy, and defamation provide substantial cause-of-action support right now. The task is mapping the synthetic media to the correct theory and understanding the First Amendment headwinds each pathway faces.
II. Right of Publicity — Florida
A. Statutory Framework
Florida's right of publicity is codified at Fla. Stat. § 540.08, which prohibits the unauthorized commercial use of any living or deceased person's name, portrait, photograph, or "other likeness." The statute provides:
- A private civil right of action;
- Actual damages (including unjust enrichment);
- Punitive damages where defendant's conduct is knowing or intentional;
- Injunctive relief; and
- Attorney's fees in the court's discretion.
The right survives death for forty years under § 540.08(4), enabling post-mortem claims for deceased individuals whose synthetic likenesses are exploited commercially.
The word "commercial" is load-bearing. Florida courts interpret it to require that the use be for purposes of trade, advertising, or commercial advantage — not merely for speech or entertainment. A deepfake created and distributed to advertise a product, generate subscription revenue, or extract payments from the subject (as in sextortion scenarios) fits squarely within the commercial use requirement. A deepfake created for political satire or commentary raises First Amendment complications (discussed below).
B. "Other Likeness" and Synthetic Media
The statutory phrase "other likeness" extends beyond photographs to any representation recognizable as the plaintiff. Synthetic video generated by training an AI model on a person's actual image and voice constitutes a "likeness" within the ordinary meaning of the term — the whole point of the technology is recognizable fidelity to the source. The defendant who generates a synthetic video of a plaintiff endorsing a product has used that plaintiff's likeness without authorization within § 540.08's plain meaning, even though no actual recording of the plaintiff was used in the final output.
Counsel should plead both the synthetic output and the source material: if the defendant scraped the plaintiff's social media images or video to train the generation model, that scraping may independently constitute misappropriation of likeness, and it rebuts any argument that no actual likeness of the plaintiff was used.
III. Right of Publicity — Alabama
A. Alabama Right of Publicity Act
Alabama codified a comprehensive right of publicity regime at Ala. Code § 6-5-770 et seq., enacted as Act 2015-188. The statute protects "indicia of identity," a broader term than Florida's "name, portrait, photograph, or other likeness," encompassing:
- Name;
- Voice;
- Signature;
- Photograph or likeness;
- "Any other aspect of a person's identity."
The "any other aspect" language is notable: a synthetic audio deepfake that replicates a person's distinctive voice may constitute misappropriation of the voice as an independently protected indicia, separate from any visual likeness claim.
Under § 6-5-774, plaintiffs may recover:
- Actual damages (including unjust enrichment of the defendant);
- Statutory damages of $5,000 per violation (where actual damages are difficult to quantify);
- Punitive damages for knowing or intentional violations; and
- Attorney's fees.
The right endures fifty-five years post-death under § 6-5-772, and heirs or assignees may bring post-mortem claims. This is particularly significant in cases involving deepfakes of deceased entertainers or public figures whose estates continue to hold commercial licensing rights.
B. The "Commercial Exploitation" Element in Alabama
Like Florida, Alabama requires that the misappropriation be for "commercial purposes" — broadly, the use of the plaintiff's indicia of identity for advertising, trade, or commercial advantage without written consent. The statutory damages provision at § 6-5-774 makes Alabama a more attractive jurisdiction than Florida for smaller-scale deepfake cases where actual commercial damages are modest but the violation is clear: $5,000 per violation provides real recovery even when unjust enrichment is difficult to prove.
IV. Intentional Infliction of Emotional Distress
A. The Elements
Where the right of publicity framework requires "commercial" use that a particular deepfake may not satisfy — for example, a nonconsensual intimate image distributed without a commercial motivation — intentional infliction of emotional distress (IIED) provides an alternative pathway. The elements under both Florida and Alabama law are:
- The defendant's conduct was intentional or reckless;
- The conduct was extreme and outrageous — beyond all bounds of decency;
- The conduct caused severe emotional distress; and
- The emotional distress was severe.
Deepfakes placing the plaintiff in nonconsensual intimate scenarios, fabricating criminal confessions, or depicting the plaintiff engaged in degrading acts that the plaintiff found and widely circulated meet the "extreme and outrageous" threshold as plausibly as any conduct category courts have recognized. The "beyond all bounds of decency" standard is admittedly demanding, but fabricated intimate imagery distributed to the plaintiff's family, employer, or community qualifies without much analytical strain.
B. Damages in IIED
IIED does not require economic loss. Severe emotional distress — anxiety, depression, occupational disruption, social withdrawal — supported by treating mental health provider testimony and the plaintiff's own account is sufficient. In severe cases (nonconsensual intimate deepfakes distributed to employers, for example), consequential economic damages (lost employment, lost earning capacity) attach and can be substantial.
C. Recklessness as a Substitute for Specific Intent
Many deepfake distribution scenarios involve third-party distributors who did not create the synthetic content but who continued distributing it after receiving notice. The recklessness prong of IIED may reach those secondary actors, particularly where they continued distribution after being informed the content was synthetic and nonconsensual.
V. Defamation and False Light
A deepfake that depicts the plaintiff committing a crime, making statements the plaintiff never made, or engaging in conduct the plaintiff never engaged in constitutes a false statement of fact with respect to the plaintiff — the core of defamation. The "of and concerning" requirement is satisfied by the plaintiff's recognizable likeness. The falsity element is inherent: the content is synthetic.
For private-figure plaintiffs, negligence as to falsity is sufficient in most jurisdictions. For public-figure plaintiffs, New York Times Co. v. Sullivan, 376 U.S. 254 (1964), requires actual malice — but an AI-generated depiction of a public figure doing something the creator knew was fabricated is actual malice by definition. The argument that the creator did not know the content was false because it was AI-generated fails: the creator knew the AI was generating synthetic, non-real content.
False light invasion of privacy under the Restatement (Second) of Torts § 652E is an alternative to defamation where the content is highly offensive to a reasonable person and the defendant acted with malice or reckless disregard for the truth — a standard deepfake scenarios easily satisfy.
VI. First Amendment Complications
A. Satire, Parody, and Transformative Use
The First Amendment creates space for satire and parody that does not constitute commercial misappropriation. A deepfake that is clearly labeled as satire, that comments on a public figure's actual conduct, and that has no commercial dimension will test the limits of § 540.08 and § 6-5-770. The Restatement (Third) of Unfair Competition § 47 and the transformative use defense recognized in Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001) (influential though not binding outside California), require courts to ask whether the expression adds significant creative value beyond mere exploitation of the plaintiff's identity.
Plaintiffs' counsel should distinguish: a synthetic video that is purely imitative — a deepfake advertisement, a deepfake intimate video, a deepfake false confession — adds no transformative value and gets no First Amendment shelter. A clearly labeled parody video that mimics the plaintiff's mannerisms to make a political point is closer to protected speech.
B. Proposed Federal Legislation
The NO FAKES Act has been reintroduced in both chambers of Congress with bipartisan support as of 2025, and as of May 2026 remains proposed legislation — it has not been enacted. It would create a federal right of action for nonconsensual use of AI-generated voice or visual likenesses. Counsel should monitor its status but build current cases on existing state-law foundations. Do not plead a cause of action under the NO FAKES Act until it becomes law.
VII. Practice Notes
Preservation is urgent. Synthetic media disappears quickly — from platforms, from defendant devices, from third-party hosting services. Send preservation letters to platforms immediately upon identification and consider emergency injunctive relief for ongoing distribution. Platform DMCA takedown procedures, while imperfect, can slow spread while litigation proceeds.
Identity of the generator. In many cases the creator of the synthetic content is unknown. Subpoena platform hosting records and payment processors associated with the account that distributed the content. AI generation platforms increasingly maintain creation logs; subpoena those records once identity is established or seek third-party discovery from the platforms.
Statutory damages as leverage. Alabama's $5,000-per-violation statutory damages provision is meaningful in cases with multiple uses across multiple platforms. Each unauthorized commercial use may constitute a separate violation — count them carefully and plead them specifically.
Jurisdiction and choice of law. Where plaintiff is a Florida or Alabama resident and the deepfake has commercial circulation in those states, jurisdiction and application of state right of publicity law should be straightforward. For claims against out-of-state defendants who distributed content nationally, choice of law favors the plaintiff's home state whose resident was harmed.
VIII. Open Questions and Where the Law Is Moving
Several doctrinal questions remain unresolved as deepfake litigation develops. Courts have not yet systematically addressed whether the training of an AI model on a person's photographs and video without consent — independent of the model's output — constitutes a cognizable use of that person's likeness under existing right of publicity statutes. That upstream question may be significant for class-action theories against AI developers.
Section 230 of the Communications Decency Act, 47 U.S.C. § 230, provides platform immunity for user-generated content, which means deepfake hosts (not creators) are largely shielded from liability in federal court under current doctrine. Congress has not amended § 230 to carve out synthetic media, which channels the most actionable claims toward the creators and commercial distributors rather than platforms.
IX. Closing
The law applicable to deepfake harm is not speculative. Florida's § 540.08 and Alabama's Act 2015-188 protect individuals from commercial exploitation of their identities in forms the legislatures could not have specifically anticipated but plainly intended to reach. IIED doctrine reaches nonconsensual intimate synthetic imagery where commercial use is absent. Defamation and false light close the remaining gaps. Practitioners should evaluate deepfake cases against this existing framework without waiting for federal legislation to do the heavy lifting.
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Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.