Consumer Protection
Right of Publicity Matters
Florida’s Right of Publicity Statute (Fla. Stat. § 540.08), the Generative AI Gap & Litigation in Florida’s Federal Courts
The world of advertising has evolved continuously in response to technology — from printed catalogs and coupons to social-media campaigns, influencer content, and now AI-generated media that can place a real person’s face, voice, or body into an advertisement that person never made. Florida’s answer to unauthorized commercial use of a person’s identity has been the same since 1967: Section 540.08, Florida Statutes, which prohibits publishing or publicly using a person’s name, portrait, photograph, or other likeness for trade, commercial, or advertising purposes without consent. The statute has been applied to nightclub flyers, hotel advertisements, product packaging, investment prospectuses, and celebrity photographs — and it is now being asked to do work its drafters never imagined: policing synthetic likenesses generated by machines.
Our Miami intellectual property attorneys enforce and defend right-of-publicity claims in the Southern and Middle Districts of Florida and in Florida’s state courts, draft the consents, releases, and licenses that keep advertising campaigns on the right side of § 540.08, and advise brands, agencies, athletes, and public figures on the fast-developing intersection of publicity rights and generative AI.
Florida’s Right of Publicity: What § 540.08 Protects
A 1967 statute, a common-law tort, and a 40-year post-mortem right
Florida protects the right of publicity under both statute and common law. Section 540.08 makes it unlawful to “publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose” the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent of that person, of a person or entity authorized in writing to license the use, or — if the person is deceased — of the licensor or, absent one, the surviving spouse and children. The statute expressly preserves the common-law rights it sits alongside, and the Florida Supreme Court has confirmed that Florida recognizes both a statutory and a common-law right of publicity (Weaver v. Myers, 229 So. 3d 1118 (Fla. 2017)), rooted in the privacy tort first recognized in Cason v. Baskin, 20 So. 2d 243 (Fla. 1944).
Elements of the cause of action
A plaintiff must generally establish four things: (1) the defendant published, printed, displayed, or otherwise publicly used the plaintiff’s name, portrait, photograph, or other likeness; (2) the use was for purposes of trade or for a commercial or advertising purpose — meaning it conferred a commercial benefit on the defendant or directly promoted a product or service, not merely that the plaintiff appeared in something sold for profit; (3) the use was made without the required consent; and (4) no statutory exception applies. The second element carries most of the weight. In Tyne v. Time Warner Entertainment Co., 901 So. 2d 802 (Fla. 2005), answering a certified question from the Eleventh Circuit in the Perfect Storm litigation, the Florida Supreme Court held that “commercial purpose” does not reach expressive works such as motion pictures; the use must directly promote a product or service. Federal courts in Florida had reached the same conclusion earlier (Tyne v. Time Warner Entm’t Co., 204 F. Supp. 2d 1338 (M.D. Fla. 2002)), and the Eleventh Circuit applied it in Almeida v. Amazon.com, Inc., 456 F.3d 1316 (11th Cir. 2006), holding that displaying a book cover bearing a person’s photograph in an online listing is incidental to the sale of the book, not a commercial use of the person’s likeness.
| Provision | What It Says | Why It Matters |
|---|---|---|
| Protected attributes — § 540.08(1) | Name, portrait, photograph, or “other likeness” of any natural person. | “Other likeness” is the language plaintiffs invoke against look-alikes, voice imitations, and — increasingly — AI-generated depictions. |
| Consent — § 540.08(1), (6) | Express written or oral consent of the person, an authorized licensor, or (for a minor) a parent or guardian; for the deceased, the licensor or the surviving spouse and children. | Oral consent counts, but proving it is the defendant’s problem; written releases that name every medium and use are the only safe practice. |
| Remedies — § 540.08(2) | Injunction; damages for any loss or injury, including a reasonable royalty; punitive or exemplary damages. | The reasonable-royalty measure lets a plaintiff recover the fair licensing value of the use without proving lost sales; punitive exposure drives settlements. |
| Exceptions — § 540.08(4) | (a) bona fide news reports of legitimate public interest, not used for advertising; (b) resale or redistribution of works or merchandise the person consented to; (c) photographs of a person solely as a member of the public, not named or identified. | The news exception protects journalism, not advertorials; the “member of the public” exception defeated a § 540.08 claim over an unrecognizable figure in a brochure (Epic Metals Corp. v. Condec, Inc., 867 F. Supp. 1009 (M.D. Fla. 1994)). |
| Military members — § 540.08(5) | Civil penalty of up to $1,000 per violation for unauthorized use of a service member’s likeness. | A separate, per-violation penalty on top of ordinary remedies. |
| Post-mortem term — § 540.08(7) | No action may be brought for a use occurring more than 40 years after the person’s death. | One of the longer post-mortem terms in the country; the right passes to the surviving spouse and children and belongs in the estate plan. |
| Limitations period | Florida courts apply the general four-year period of § 95.11(3), running from the first unauthorized use. | Older uses in a long-running campaign may be time-barred while newer ones remain actionable, as several model-image cases illustrate. |
| Attorney’s fees | None. Section 540.08 contains no prevailing-party fee provision. | Fee recovery requires a companion claim — a registered trademark under Chapter 495, a Lanham Act “exceptional case,” or FDUTPA (§ 501.2105). |
How § 540.08 fits into an athlete’s or public figure’s broader NIL rights — alongside Lanham Act false-endorsement claims and trademark registration — is explained in our Name, Image & Likeness Matters summary.
Right of Publicity Litigation in the Middle and Southern Districts of Florida
What the reported decisions show about who wins, who loses, and why
Right-of-publicity claims reach Florida’s federal courts in two ways: through diversity jurisdiction, and — far more often — as companion counts to Lanham Act false-endorsement or false-advertising claims, which is how the wave of suits by professional models against nightclubs, bars, and resorts that began in 2015 arrived in Miami, Fort Lauderdale, Tampa, and Orlando. Because federal dockets carry no nature-of-suit code for publicity claims, no official filing count exists; a defense-bar review in 2022 put the model-image cases alone “in the hundreds nationwide,” and a single consolidated Middle District action, Gibson v. Tomkovich, named fifteen Tampa-area club defendants. The most reliable measure of how these claims fare is therefore the body of reported decisions, which we track and summarize below.
The pattern is consistent across both districts and three decades. When a person’s photograph or name is placed in an advertisement, flyer, social-media promotion, packaging, or prospectus, § 540.08 claims survive motions to dismiss, frequently win summary judgment on liability, and — in the one Florida case tried to a jury — produced awards of $12,500 to $65,000 per plaintiff. When the likeness appears inside an expressive work or an incidental commercial listing — a film, a game show, a book cover, a broadcast, a product listing — the claim fails as a matter of law under Tyne. The contested ground is damages: a plaintiff who proves liability but offers no evidence of licensing value or injury may recover only nominal damages (Fuccillo v. Silver, M.D. Fla. 2021), and the Eleventh Circuit has vacated awards against affiliated companies and individual owners where the plaintiffs did not prove each defendant’s own participation (Edmondson v. Velvet Lifestyles, LLC, 43 F.4th 1153 (11th Cir. 2022)).
| Decision | District / Year | Use at Issue | Outcome on § 540.08 Claim |
|---|---|---|---|
| NFL v. Alley, Inc., 624 F. Supp. 6 | S.D. Fla. 1983 | Unauthorized interception of televised games | Defendant — players had consented to broadcast; public-interest exception |
| Epic Metals Corp. v. Condec, Inc., 867 F. Supp. 1009 | M.D. Fla. 1994 | Unrecognizable figure in promotional brochure | Defendant — “member of the public” exception |
| Tyne v. Time Warner Entm’t Co., 204 F. Supp. 2d 1338; 901 So. 2d 802 (Fla. 2005) | M.D. Fla. 2002 | Names and stories of Perfect Storm crew in a motion picture | Defendant — expressive work is not a “commercial purpose” |
| Lane v. MRA Holdings, LLC, 242 F. Supp. 2d 1205 | M.D. Fla. 2002 | Footage in Girls Gone Wild video and its advertising | Defendant — consent to filming; advertising of the work itself |
| Almeida v. Amazon.com, Inc., 456 F.3d 1316 (11th Cir. 2006) | S.D. Fla. 2004 | Book-cover photograph displayed in online listing | Defendant — incidental to sale of the book |
| Coton v. Televised Visual X-Ography, Inc., 740 F. Supp. 2d 1299 | M.D. Fla. 2010 | Photographer’s self-portrait on adult DVD packaging | Plaintiff — default judgment; damages awarded |
| Gibson v. Resort at Paradise Lakes, LLC, No. 8:16-cv-791 | M.D. Fla. 2017 | Models’ images on nudist-resort flyers | Plaintiff — motion to dismiss denied on § 540.08 and common-law counts |
| Gibson v. BTS North, Inc., No. 1:16-cv-24548 | S.D. Fla. 2018 | Models’ images on gentlemen’s clubs’ Facebook pages | Plaintiff — summary judgment on § 540.08 liability; damages to trial |
| Commodores Entm’t Corp. v. McClary (Orlando Div.) | M.D. Fla. 2018 | Former band member’s photo in band’s social media | Defendant — summary judgment against § 540.08 counterclaim |
| Taylor v. Trapeze Mgmt., LLC, No. 17-cv-62262 | S.D. Fla. 2019 | Models’ images in club advertising | Plaintiff — summary judgment on right-of-publicity claims |
| Edmondson v. Velvet Lifestyles, LLC, 43 F.4th 1153 (11th Cir. 2022) | S.D. Fla. 2020 | 32 models’ images in swingers’ club ads | Mixed — liability and $12,500–$65,000 per-plaintiff jury awards; vacated as to affiliate and owner |
| Fuccillo v. Silver, No. 8:18-cv-1236 | M.D. Fla. 2021 | Auto dealer’s name used in cybersquatted domains | Mixed — liability, but $1 nominal damages for lack of proof of loss |
| Jackson (50 Cent) v. Kogan, No. 22-22972 | S.D. Fla. 2022 | Rapper’s photo used to promote a med-spa’s procedures | Plaintiff — motion to dismiss denied on all six counts; settled Feb. 2023 |
| Swiler v. RSJ Ventures, LLC, No. 2:24-cv-661 | M.D. Fla. 2025 | Chef’s signature and likeness kept on product packaging after sale | Defendant — TRO/preliminary injunction denied (four-year delay) |
| Gori v. Sharma, No. 2:25-cv-746 | M.D. Fla. 2025 | Advisors’ names in prospectus for a non-existent fund | Plaintiff — TRO granted on likelihood of success under § 540.08 |
Three lessons follow for anyone using a person’s image in Florida advertising. First, the statute is strictly applied to advertising and promotional uses — the absence of a written release is, in practice, the end of the liability question. Second, the four-year limitations period and the per-defendant proof requirements of Edmondson are the defense’s best tools in a mass-plaintiff case. Third, the remedy that matters is the reasonable royalty: a plaintiff who can document what the licensing market would have paid recovers it; one who cannot may walk away with a dollar.
The Generative AI Gap
A statute that never mentions AI, a bill that died in messages, and a compliance posture that doesn’t wait for either
Among the newest advertising methods is AI-generated content that borrows a real person’s face, voice, or body to promote products or services. A-list personalities — Scarlett Johansson, Taylor Swift, and Tom Brady among them — have seen their likenesses used in AI-generated advertising without consent, but the phenomenon reaches far beyond celebrities and athletes to models, influencers, brand ambassadors, executives, and ordinary customers whose images are repurposed by the tools now built into every marketing platform. As written today, § 540.08 contains no reference to artificial intelligence, synthetic media, generative AI, or digital replicas. Its operative terms — “name, portrait, photograph, or other likeness” — were drafted in 1967, and no Florida appellate court has yet held that an AI-generated or AI-altered depiction of a real, identifiable person is a “likeness” under the statute.
That said, nothing in the statute ties it to a camera. The harm it targets is unauthorized commercial exploitation of a person’s identity, and that harm is present whether the depiction was photographed or synthesized, so long as the image realistically depicts an identifiable person and is used for trade or advertising. The Middle District’s 2002 observation in Tyne that the statute reaches uses “for the defendant’s benefit” to promote a product cuts the same way. The question is open, not lost — but open questions are expensive to litigate, and a formal amendment or an appellate ruling is what businesses and public figures need for clear guidance.
Recent legislative activity
| Measure | Status | What It Does — or Would Have Done |
|---|---|---|
| Florida CS/SB 482 (2026), “Artificial Intelligence Bill of Rights” | Passed the Senate 35–2 on March 4, 2026; died in messages in the House on March 13, 2026 | Would have amended § 540.08 to define “generative AI” — a machine-based system that emulates the structure and characteristics of input data to generate derived synthetic content, including images, video, audio, and text — and extended the statute’s protection to synthetic likenesses. A watch item for the 2027 session. |
| “Brooke’s Law,” Ch. 2025-133, Laws of Fla. (HB 1161) | Signed June 10, 2025; platform takedown processes required by December 31, 2025 | Requires covered platforms to remove nonconsensual altered sexual depictions (sexual deepfakes and “nudify” output) within 48 hours of a valid request, enforceable as a FDUTPA violation; complements the criminal prohibition on altered sexual depictions in § 836.13. Addresses a specific harm, not commercial use generally. |
| Fla. Stat. § 106.145 (political advertising) | In force | Requires prescribed disclaimers on political advertisements that use generative AI to depict a real person doing or saying something that did not occur, with disclaimer formats specific to each medium. |
| NO FAKES Act of 2026, S. 4591 (federal) | Reported unanimously by the Senate Judiciary Committee on June 18, 2026; pending on the Senate floor with a House companion | Would create a federal digital-replica right in every individual’s voice and visual likeness, with a DMCA-style notice-and-takedown system, penalties for false counter-notices, and safe harbors for news, parody, and criticism, while preserving state publicity laws in effect as of January 2, 2025 — including § 540.08. |
The first test cases — filed elsewhere, watched here
Florida has no reported decision on the question yet, but two 2026 suits in other states frame the issue Florida courts will face. In Pujols v. Rainbow USA Inc., No. 157543/2026 (N.Y. Sup. Ct., N.Y. Cnty.), professional model Francheska Pujols alleges that a retail brand used generative AI to create new photographs of her — new poses, body positioning, and wardrobe — that she never shot and never approved; the brand’s defense is that the release’s right to “edit, modify, or alter” her photographs is broad enough to cover AI-assisted depictions. In Tranchin v. EBY, Inc., No. 26-cv-5559 (N.D. Cal. filed June 9, 2026), influencer Molly Tranchin alleges that an apparel brand used generative AI to turn a promotional video she supplied into an explicit deepfake. Neither New York’s nor California’s statute mentions AI either. Whichever way those courts rule, the cases teach the same lesson: the release, not the statute, will decide most AI-likeness disputes for the next several years.
Guidance for Businesses, Brands & Public Figures
Treat a synthetic likeness exactly as you would a photograph — and write the release that way
The safer compliance posture for any business is to treat AI-generated or AI-altered depictions of identifiable real people the same as photographs, video, and audio for consent and licensing purposes. The statutory gap is far more likely to be read as an artifact of the drafting era than as a deliberate carve-out — the Legislature’s 2026 attempt to close it signals where the law is heading even though it did not pass — and a business that waits for the amendment will be defending the first Florida test case. For public figures, athletes, and creators, the same logic applies in reverse: the license you sign today will be read against the technology of tomorrow.
- Audit every release and license for AI. Existing model, talent, influencer, and employee releases should be reviewed for language — “edit, modify, alter,” “derivative works,” “in any media now known or hereafter devised” — that a counterparty could read to authorize synthetic depictions. New agreements should say expressly whether AI-generated or AI-altered depictions are permitted, for what uses, for how long, and with what approval rights.
- Obtain written consent for every commercial use. Oral consent is legally sufficient under § 540.08 but practically unprovable. A written release identifying the person, the media, the territory, the term, and the specific campaign is the single most effective defense to a publicity claim.
- Separate editorial from advertising. The news and expressive-work exceptions protect journalism, documentary, and entertainment content; they do not protect a sponsored post, an advertorial, or a product page. Content that migrates from one category to the other needs a new consent.
- Control the marketing stack. AI image and video tools embedded in advertising, e-commerce, and social-media platforms can generate new depictions of people in existing assets. Vendor contracts and internal policies should prohibit generating likenesses of identifiable people without a release on file, and platform terms should be checked for licenses the business never intended to grant.
- Register the marks and plan the estate. For athletes, entertainers, and founders, a Florida or federal trademark registration in the person’s name and logo adds fee-shifting and presumption remedies that § 540.08 lacks, and the 40-year post-mortem right belongs in the estate plan, ideally held through a licensing company as described in our NIL materials.
- Move quickly when a use is discovered. The four-year limitations period runs from the first unauthorized use, and a plaintiff who delays — four years in Swiler — forfeits injunctive relief even where liability is clear. A cease-and-desist letter, a platform takedown request, and, where the use is ongoing, an emergency motion should follow discovery of the use within days.
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