By: Juliana Bologna
Imagine scrolling through social media and seeing yourself in an advertisement for a product you’ve never used. Your face is on the screen, your voice is promoting the product, and you appear to be enthusiastically endorsing a company you’ve never heard of. There’s just one problem: you never agreed to any of it. With generative artificial intelligence (AI), creating a convincing imitation of someone’s appearance or voice no longer requires their participation.
The issue surrounding AI-generated identities made headlines in May 2024 when actress Scarlett Johansson raised concerns about OpenAI’s “Sky” chatbot voice, which she believed sounded remarkably similar to hers after she declined an offer to voice the product. OpenAI maintained that “Sky” was voiced by another actress and was never intended to imitate Johansson but ultimately paused its use. Although the dispute did not establish that Johansson’s voice had been cloned, it highlighted a concern that extends far beyond Hollywood: what happens when technology can convincingly recreate someone’s identity without their consent?
Washington’s Right of Publicity and SSB 5886
Washington’s Personality Rights Act has long recognized an individual’s property right in the use of their name, voice, signature, photograph, and likeness. Wash. Rev. Code § 63.60.010 (2026). Commonly known as the right of publicity, these protections are not limited to celebrities or public figures, generally prohibiting unauthorized commercial uses of a person’s identity in merchandise, advertisements, and fundraising, regardless of whether the use generates a profit. Wash. Rev. Code § 63.60.050 (2026).
However, the emergence of increasingly sophisticated AI-generated impersonations has raised new questions about whether Washington’s traditional protections for an individual’s voice and likeness adequately address synthetic representations. In response, Washington lawmakers passed Substitute Senate Bill 5886 (SSB 5886), which took effect on June 11, 2026, and expressly added “forged digital likeness” to the state’s existing personality rights protections. Rather than broadly prohibiting deepfakes, the amendment extends existing protections to certain digitally created or altered representations. Under the amended statute, a forged digital likeness must be indistinguishable from a genuine representation, misrepresent an identifiable individual’s appearance, speech, or conduct, and be likely to deceive a reasonable person into believing it is authentic. Wash. Rev. Code § 63.60.020(3) (2026).
The amendment also strengthens remedies for infringement. Under the Act, an individual whose rights are infringed may seek actual damages, profits attributable to the infringement that are not already included in those damages, and a $3,000 civil penalty. When the infringement involves a forged digital likeness, individuals may additionally recover noneconomic damages, even if the infringement generated no profit. Wash. Rev. Code § 63.60.060(2) (2026).
Does an AI Imitation Have to Deceive Someone to Be Unlawful?
Although these changes strengthen Washington’s protections against digital impersonation, the reasonable-person deception requirement raises an important question: Must an AI-generated imitation deceive someone before the person it imitates is protected?
Consider a Washington resident whose face and voice are recreated in an AI-generated advertisement for a local business. The business never obtains permission, but the advertisement includes a prominent disclaimer identifying the content as AI-generated. Viewers understand that the person never actually appeared in the advertisement, yet the business is still benefiting from their recognizable identity.
Under Washington’s new definition, an advertiser who includes a prominent AI disclaimer could argue that the content is not likely to deceive a reasonable person and therefore does not qualify as a forged digital likeness. But disclosure alone does not automatically make the advertisement lawful. Washington’s Personality Rights Act separately protects an individual’s voice and likeness, meaning an unauthorized AI-generated replica could still give rise to a claim even if it does not meet the new definition of a forged digital likeness. The Act defines “likeness” broadly to include representations of an individual’s face, distinctive appearance, gestures, or mannerisms. Wash. Rev. Code § 63.60.020(6) (2026). Whether these existing protections would apply to a particular AI-generated replica remains uncertain. Wash. Rev. Code § 63.60.050 (2026).
Revisiting Johansson Under Washington Law
This distinction matters because an advertisement does not have to fool its audience to benefit from someone’s recognizable identity. Consider Johansson’s dispute with OpenAI. If a similar situation arose in Washington today, the new law might offer protection if the voice were shown to be a digitally created imitation likely to deceive a reasonable person. But if the voice merely resembled hers, as OpenAI maintained, establishing that it qualified as a forged digital likeness could be much more difficult. The dispute illustrates the challenge Washington courts may face in distinguishing between a convincing imitation and the unauthorized use of someone’s recognizable identity when deception is no longer part of the equation.
Conclusion
Washington’s expansion of its Personality Rights Act marks a significant step toward addressing AI-generated impersonation, but questions remain about how the law distinguishes deception from unauthorized commercial use. As synthetic media becomes more sophisticated and realistic, courts may need to clarify how these existing protections apply when an individual’s identity is recreated without consent. The real question may not be whether an AI-generated imitation can deceive a reasonable person, but whether that potential for deception should determine the limits of an individual’s right to their own identity, especially when the next face or voice at the center of that question could be yours.
#RightOfPublicity #Deepfakes #WashingtonLaw #WJLTA
