Washington Becomes the Latest State to Expand Right of Publicity Protections to Digital Replicas

This article is part of DWT's The Generative Slate Series. It explores the use of generative AI in the production and distribution of content.

Washington is the latest state to update its right of publicity statute to address the explosion of generative AI productions and unauthorized uses of digital replicas in certain commercial contexts. On June 10, 2026, Washington's new right of publicity law (Senate Bill 5886) will go into effect, which provides every individual or personality with a property right in the use of his or her name, voice signature, photograph—and now, his or her digital likeness. Specifically, Section 63.60.050 of the right-of-publicity law now provides a cause of action for the unauthorized use of one's "forged digital likeness," in addition to the unauthorized use of one's name, voice, likeness, signature, and photograph. For rightsholders and content creators, this amended statute represents the new normal: a growing patchwork of varied (and at times, inconsistent) state laws regulating how generative AI is used to create voice, image, or video content ranging from advertisements to products to certain types of expressive works.

To be sure, such laws are not new. Washington has now joined about a dozen other states—including California, New York, Tennessee, and Louisiana—that have modified their right of publicity laws to address the unauthorized use of digital replicas. Washington's statute, however, raises a series of questions about how the new law will be enforced and what kind of depictions may fall within its ambit.

As an initial matter, the statute's definition of a "forged digital likeness" is relatively limited, defined as a visual or audio representation "of an actual and identifiable individual" that "(a) has been digitally created, adapted, altered or modified to be indistinguishable from a genuine visual representation or recording of the individual; (b) misrepresents the appearance, speech, or conduct of the individual; and (c) is likely to deceive a reasonable person into believing the visual representation or audio recording is genuine." But important questions remain. What rises to the level of "indistinguishable" from a real person or voice? And what exactly would "misrepresent" the appearance of a real person? Will courts be willing to decide what would "likely … deceive" a reasonable person as a matter of law on a motion to dismiss? Would a disclaimer be sufficient to satisfy the law (and if so, what does it need to look like)?

Traditional content creators like artists, film and television producers, documentary filmmakers, and the news media likely have little to fear from the new law. Section 63.60.070 of Washington's right-of-publicity law includes express exceptions for "[s]ingle and original works of fine art," "[a] literary work, theatrical work, musical composition, film, radio, online or television program, magazine article, news story, public affairs report, or sports broadcast or account," and advertisements for the same. While the June 10 amendments do not revise Section 63.60.070 to include "forged digital likeness" in the uses subject to the exceptions, courts are likely to interpret these exceptions as applying to a forged digital likeness because of the statute's call back to Section 63.60.050. To the extent that is not the case, the new law would raise serious constitutional concerns.

In the realm of more commercial speech, the potential application of the new right is less certain. The new law prohibits the use of a "forged digital likeness" on or in goods, merchandise, or products entered into commerce in the state, or for purposes of advertising products, merchandise, goods, or services, regardless of whether the use or activity is for profit or not. Although the law exempts "matters of cultural, historical, political, religious, educational, newsworthy, or public interest," paid advertisements where "the principal purpose of the advertisement is to comment on such matter," and de minimis uses, the potential scope of the law's application is broad. How will the law be applied to social media and influencer uses that incorporate ads? How much commentary on the individual being depicted will suffice? What constitutes a de minimis use for a famous person? These are all issues that will likely take years to clarify.

Washington's amended law also includes new remedies, which increase the risks associated with potential uses. Violators are now subject to a larger civil penalty of $3,000 and actual damages suffered as a result of the infringement, plus any profits attributable to the infringement. Notably, the statute also adds special penalties for use of an unauthorized digital likeness, mandating that the violator "shall also be liable for the noneconomic damages sustained as a result of the infringement whether or not the infringement resulted in any profits." This penalty suggests that those who violate the statute are subject to mandatory damages—a significant penalty that may deter creators from depicting individuals without consent.

These questions are of special import because Washington is one of two states (along with Indiana) that specifies that its statutory right of publicity applies to all personalities, living or deceased, regardless of their domicile as long as the "use" occurs in the state. While such broad laws are constitutionally suspect, there have yet to be many constitutional challenges to help define how generative AI and digital likenesses may be regulated. So, for now, content creators and advertisers should assume that if they're using a person's digital likeness for a commercial purpose without authorization, that person (or their estate) may have a cause of action under Washington's law—even if that person isn't or wasn't ever domiciled in the state.

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Caesar Kalinowski IV is counsel in DWT's Seattle office, Samuel Bayard is a partner in the firm's New York office, and Adrian Vallens is an associate in our Los Angeles office. For questions or more insights, please reach out to the authors or another member of our intellectual property team and sign up for our alerts.