Imagine that there is a deepfake video of you. It looks and sounds just like you; however, you have never presented yourself that way or said those things. Now picture that this deepfake is released after you’ve passed away, leaving your family shocked but powerless to stop it.
This is not science fiction. AI deepfakes have become so convincing that even trained eyes can have trouble spotting them. What used to be a concern for Hollywood stars is now a very real possibility for everyday people. Whether you are a business owner, college athlete, influencer, or simply someone who has ever posted a photo online, your image can be copied, altered, and repurposed in ways you never intended.
Why This Matters Now
AI technology has advanced alarmingly quickly, while laws meant to protect individuals from misuse of their likeness have lagged far behind. In the wrong hands, your name, face, voice, and mannerisms can be used to create content that looks authentic but is completely fake.
The harm goes far beyond embarrassment. Imagine a deepfake of you promoting a product you do not believe in, appearing to endorse a political candidate you would never support, or making offensive statements you would never say. Now imagine that content circulating after your death, with your family powerless to stop it.
The Right of Publicity Explained
The right of publicity is a legal right allowing you to control your name, image, likeness, voice, and other recognizable personal aspects of your identity from unauthorized commercial use.
This right is not the same as copyright or trademark protection, which receives federal protection. The right of publicity specifically deals with protecting your identity from unauthorized commercial use, and it is left to the states to provide for.
Where Michigan is Lacking
Michigan does not have a specific statute that recognizes the right of publicity. While you are alive, you may be protected under common law misappropriation of likeness, which means you can sue someone who uses your image without permission in a commercial context.
However, once you pass away, those protections generally disappear. The Sixth Circuit Court of Appeals has discussed postmortem publicity rights in theory, but Michigan courts have not definitively ruled on the issue. Without a statute, there is no clear, automatic transfer of those rights to your heirs.
What Happens Without Planning
If you do not plan, your right to control your image will likely die with you under current Michigan law. Your family might try to bring claims for unfair competition or invasion of privacy, but these legal routes are not guaranteed to succeed.
This means that if someone creates a deepfake of you after your death, your loved ones could face a strenuous uphill legal battle. Even if the use is harmful or misleading, the absence of statutory postmortem rights makes enforcement much more difficult.
Why Deepfakes Raise the Stakes
Deepfake technology has made it faster and cheaper than ever to create fake content that appears real. All it takes is a few minutes of audio or a handful of photos to train an AI system to mimic your appearance and voice.
This can lead to:
- Fake endorsements for products or services you never supported
- False political statements that could damage your reputation
- Embarrassing or offensive content that harms your family’s peace of mind
Because Michigan law does not grant automatic postmortem publicity rights, your estate’s ability to fight back will be limited unless you act while you are alive.
Protecting Your Right of Publicity in Michigan
Even though Michigan law is behind the times, you can still take steps to protect your identity and legacy. Here are some strategies to consider:
1. Name the right in your estate plan. In your will or revocable trust, specifically state that your right of publicity and any related intellectual property are assets of your estate. This makes it clear that these rights should be managed after your death.
2. Choose a capable trustee or executor. Select someone who understands the importance of protecting your likeness and who will enforce your wishes. This could include taking legal action or negotiating licensing agreements.
3. Set licensing rules. You can limit how your image can be used. For example, you might allow it for certain charitable causes but forbid commercial advertising.
4. Coordinate with copyright protection. If you own the rights to photographs, recordings, or written works that feature you, this can give your estate more leverage in controlling their use.
5. Use contracts during your lifetime. If you work in a field where your likeness has value, such as athletics or entertainment, make sure your contracts address future use of your image. This is especially important for student-athletes entering into Name, Image, and Likeness (NIL) deals.
Taking Control of Your Legacy
Michigan may not have a law that automatically protects your right of publicity after death, but that does not mean you are powerless. With the right estate planning tools, you can ensure that your image, voice, and reputation are treated with the respect you deserve long after you are gone.
Deepfakes and other AI-generated content will only become more common in the years ahead. By planning now, you can spare your family the stress and uncertainty of fighting unauthorized uses of your likeness without clear legal authority.
If you want to make sure your legacy is safe in the digital age, contact Leydorf Law Firm for an estate planning attorney who understands both traditional legal protections and the unique challenges posed by AI. Your name and image are more than just pictures on a screen; it is part of your identity and worth protecting.