The Matrix

Brands are increasingly turning to social media influencers to promote their products and services through organic and immersive content. Social media campaigns using influencers allow brands to benefit from the creativity and likeness of a content creator, resulting in advertising that can feel more natural and authentic to target audiences. Despite this shift, and even when influencers have creative freedom, the legal standards governing commercial speech have not changed; a claim that is deceptive, unfair, or unsubstantiated in a magazine ad or said by paid actors in a TV commercial is equally unlawful when it is tucked into an Instagram Story or Reel by your favorite content creator. Regardless of how organic or bespoke the content may be, brands should apply the same rigor to influencer campaigns that they employ for traditional advertising.

In April 2023, Kyland Young, a star from the popular reality TV show Big Brother, brought a right of publicity claim against NeoCortext, Inc., the developer of a deepfake software called Reface. See Young v. NeoCortext, Inc., 2:23-cv-02486 (C.D.CA filed Apr. 3, 2023). Young claimed that NeoCortext’s Reface, “which uses an artificial intelligence algorithm to allow users to swap faces with actors, musicians, athletes, celebrities, and/or other well-known individuals in images and videos,” violates California’s right of publicity law. Young’s case, which is still pending in the U.S. District Court for the Central District of California, raises important questions about deepfakes and their intersection with the law as it pertains to famous figures.