Actor Matthew McConaughey (“McConaughey”) recently sought an inventive shield against artificial intelligence (“AI”) impersonators: he registered trademarks on recordings of his own voice, including his iconic phrase, “alright, alright, alright.”[i] This move made headlines not for its legal precision but for what it revealed: a glaring gap in the law.[ii] As AI makes it simple to create perfect digital forgeries of a person’s voice or face, existing legal frameworks, such as intellectual property law, offer only fragmented and inconsistent protection against these harms.[iii] Individuals whose identities are cloned for deep-fake scams or fake endorsements are left searching for any legal hook that might provide meaningful recourse.[iv]
Increasingly, that hook is trademark law.[v] McConaughey’s strategy is a symptom of a deeper failure.[vi] In the absence of coherent federal protection for personal identity, people are forced to stretch a commercial law designed for branding into a shield for their personhood.[vii] This doctrinal mismatch creates a system in which real protection depends less on legal rights and more on public visibility and resources.[viii] The central question is no longer if identity deserves protection in the AI age, but how, and whether the law will provide a clear framework or leave lawyers reliant on ad-hoc workarounds available only to those who can afford it.[ix]
Generative AI has democratized identity theft.[x] Tools that create convincing voice clones from mere seconds of audio or generate lifelike “deepfake” videos from a photograph are now widely accessible.[xi] AI voices have been used to impersonate family members in financial scams.[xii] Deepfake technology has been weaponized to create non-consensual pornography.[xiii] Scammers can insert people into fraudulent endorsements or political messages without their consent.[xiv] The injury in these cases is fundamental: a loss of autonomy over one’s own identity.[xv] It is a dignitary and reputational harm, distinct from commercial marketplace confusion that has long been trademark law’s primary concern.[xvi]
Faced with these emerging personal harms, why turn to trademark law?[xvii] The answer is more pragmatic than doctrinal.[xviii] The Lanham Act (“the Act”), the federal trademark statute, offers an attractive combination: a nationally uniform system for trademark registration, access to federal courts for infringement and “false endorsement” claims, and the potential for injunctions and monetary damages.[xix] The Act protects words, symbols, names, and other commercial source identifiers used in commerce to distinguish the course of goods or services, permitting relief when a defendant’s use is likely to cause customer confusion.[xx] Essentially, trademark law concerns whether consumers are misled about who is responsible for a product, service, or endorsement.[xxi]
Moreover, trademark law is built on a foundation of consumer confusion and commercial use.[xxii] Its purpose is to ensure fairness in the marketplace by protecting brand identifiers.[xxiii] The Act’s false endorsement provision thus appears especially relevant, as it prohibits unauthorized use of identity that misleads consumers into believing a person has approved of or is affiliated with a product or service.[xxiv] However, though this structure makes trademark law attractive to those seeking identity protection, the Act was designed to regulate commercial branding, not to protect personal identity.[xxv] Many severe AI identity harms exist entirely outside of this framework.[xxvi] A deepfake video made for harassment, humiliation, or private extortion may cause devastating injury without involving commerce or consumer confusion.[xxvii] Expanding trademark doctrine to address these harms risks distorting its core principles for the sake of convenience.[xxviii] The reliance on trademark law in the AI-driven age, therefore, reflects not doctrinal suitability but doctrinal convenience driven by the absence of better alternatives.[xxix]
The legal system already possesses a doctrine designed for identity harm: the right of publicity.[xxx] Recognized by the Supreme Court in Zacchini v. Scripps-Howard Broadcasting Co., this right protects an individual’s economic and personal interest in controlling the commercial use of their identity.[xxxi] Unlike trademark law, the right of publicity focuses directly on the misappropriation of persona itself, rather than on secondary consumer confusion.[xxxii] For this reason, scholars have widely identified it as the more conceptually appropriate framework for addressing AI-generated impersonation.[xxxiii] Yet despite this doctrinal fit, the right of publicity remains fragmented and inconsistent.[xxxiv] There is no comprehensive federal right of publicity; protection instead depends on a patchwork of state statutes and common law doctrines that vary significantly in scope, defenses, duration, and remedies.[xxxv]
Some states, such as Indiana, provide robust statutory protections that extend to a broad range of personal attributes, including gestures and mannerisms, or, as in Illinois, “any attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener.”[xxxvi] Conversely, other states offer far narrower protection, recognizing only limited common-law claims or none whatsoever.[xxxvii] A number of these states, including Louisiana and New York, confine the right of publicity to limited groups of individuals, such as professional performers.[xxxviii] State right-of-publicity statutes also impose varying jurisdictional requirements, with some restricting the law’s protection to those domiciled in the state, and others remaining more liberal.[xxxix] Therefore, whether a person has a viable claim, what they must prove and what they can recover depends largely on geography.[xl] This patchwork system creates uncertainty, increases litigation costs, and fails to provide a predictable, accessible standard of protection that an increasingly AI-driven world demands.[xli]
The resulting vacuum creates an unequal system of protection.[xlii] Celebrities like McConaughey can retain sophisticated counsel, pursue creative trademark registrations, leverage platform relationships for content removal, and use their public platforms to deter bad actors.[xliii] Their fame functions as an informal enforcement power, often more effective than any formal remedy.[xliv] Ordinary individuals, by contrast, rarely possess identities that function as registrable trademarks.[xlv] Their names, voices, and likenesses, though equally valuable to them, fall outside trademark law’s narrow commercial focus.[xlvi] Victims of deep-fake abuse or financial voice scams typically lack the resources to navigate fragmented state-law or fund complex litigation.[xlvii] The lack of a clear, federal standard means their access to justice is geographically arbitrary and financially prohibitive.[xlviii] In the AI age, meaningful protection for your identity increasingly depends on wealth and visibility rather than legal entitlement.[xlix]
McConaughey’s trademark filings, therefore, are understandable but represent a canary in the coal mine, a clever improvisation that signals a dangerous systemic gap.[l] Without a coherent federal right of publicity, individuals must resort to bending existing legal doctrines that were never designed for this purpose.[li] Courts should be cautious about expanding trademark doctrine beyond its traditional consumer-protection function to fill this void.[lii] The growing prevalence of AI-generated misuse instead underscores the need for serious legislative consideration of a coherent federal framework that addresses the unauthorized commercial and exploitative use of digital personas, while balancing First Amendment and innovation concerns.[liii] The question is no longer whether identity deserves protection in the AI era, but whether that protection will be anchored in coherent, accessible law, or remain a privilege reserved only for those who can afford to trademark their own voice.[liv]
[i] See Theresa Schliep, McConaughey Not “Alright Alright Alright” With AI Fakes, LAW360 (Jan. 14, 2026), https://www.law360.com/ip/articles/2430247 [https://perma.cc/X5VK-HTDR] (reporting that actor Matthew McConaughey registered eight trademarks within past year to prevent unauthorized AI misuse).
[ii] See id. (discussing how attorneys are left to leverage current IP legal tools like trademark law as a form of identity protection due to lack of federal legislative protection).
[iii] See Daneille K. Citron & Robert Chesney, Deepfakes and the New Disinformation War, Foreign Affairs (2019), https://www.foreignaffairs.com/articles/world/2018-12-11/deepfakes-and-new-disinformation-war [https://perma.cc/ZR87-QMRU] (stating that no legal or technological approach exists that can mitigate AI deepfake misuse and counter threat to the public altogether).
[iv] See Bobby Chesney & Danielle Citron, Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security, 107 Cal. L. Rev. 1753, 1792–95 (2019) (discussing the challenges victims face in identifying perpetrators, the limitations of tort law such as defamation and right of publicity, and the broad immunity granted to platforms under Section 230, which leaves victims with limited legal recourse).
[v] See Schliep, supra note i (noting increasingly aggressive trademark strategies deployed by celebrities like Matthew McConaughey and Taylor Swift, who filed hundreds of applications to assert control over the commercial use of their personas, catchphrases, and associated imagery).
[vi] See id. (acknowledging that trademark registrations may not be appropriate to counter unauthorized AI impersonations and that no consistent legal framework exists to do so).
[vii] See id. (discussing how celebrities are resorting to trademark law for identity protection such as actor Matthew McConaughey’s trademark strategy due to absence of federal right of publicity law); see also Jennifer E. Rothman, The Inalienable Right of Publicity, 101 Geo. L. J. 185, 187 (2012) [hereinafter Rothman, The Inalienable Right of Publicity] (stating that right of publicity claims are state law claims either at common law or by statute).
[viii] See Chesney & Citron, supra note iv (explaining the limitations of existing legal frameworks, such as the right of publicity and defamation, in addressing deep fake harms and highlighting how victims of AI misuse with greater visibility and resources are better positioned to seek redress).
[ix] See Jennifer E. Rothman, Navigating the Identity Thicket: Trademark’s Lost Theory of Personality, the Right to Publicity, and Preemption, 135 Harv. L. Rev. 1271, 1274–75 (2022) [hereinafter Rothman, Navigating the Identity Thicket] (acknowledging the protective “gap” in IP law protection regarding personal identity and proposing development of personality-oriented trademark doctrines as potential solution to safeguard individual autonomy and dignity).
[x] See Fed. Bureau of Investigation, Pub. Serv. Announcement, Criminals Use Generative Artificial Intelligence to Facilitate Financial Fraud (2024) (warning that generative AI allows criminals to create believable text, photo, audio, and visual impersonations without individual consent to commit fraud on larger scales); see also Justin Herrick, Deepfakes are Hijacking Video Calls: A 2025 Guide to Stop Them, Adaptive Security (Aug. 13, 2025), https://www.adaptivesecurity.com/blog/deepfake-video-call-security-guide [https://perma.cc/9ZGF-62Z2] (discussing the ease in which cybercriminals can generate indistinguishable AI voice clones from mere seconds of publicly available audio with over ninety-five percent accuracy).
[xi] See Amy Bunn, Artificial Imposters: Cybercriminals Turn to AI Voice Cloning for a New Breed of Scam, McAfee (Sep. 15, 2023), https://www.mcafee.com/blogs/privacy-identity-protection/artificial-imposters-cybercriminals-turn-to-ai-voice-cloning-for-a-new-breed-of-scam [https://perma.cc/DX2P-2PY2] (describing how AI voice cloning tools are freely available to cybercriminals, requiring basic experience and expertise to use with the ability to produce a clone in just three seconds).
[xii] See Fed. Trade Comm’n, Consumer Alert: Scammers Use AI to Enhance Their Family Emergency Schemes (Mar. 20, 2023) [https://perma.cc/5TSV-CEKS] (cautioning about scammers’ ability to generate AI voice clones of family members calling and asking for wire transfers, cryptocurrency investments, or gift card purchases in recent widespread financial scams).
[xiii] See N.Y. State Off. for the Prevention of Domestic Violence, Deepfakes and Image-Based Abuse, OPDV, https://opdv.ny.gov/tfgbv-deepfakes-and-image-based-abuse [https://perma.cc/TZ2R-GBGP] (last visited Feb. 12, 2026) (showing statistics that fifty-seven percent of women and one in three people globally have reported experiencing AI image-based abuse and that ninety-six percent of AI based images of people are nonconsensual).
[xiv] See Fed. Bureau of Investigation, Pub. Serv. Announcement, Senior U.S. Officials Continue to be Impersonated in Malicious Messaging Campaign (2025) (announcing that malicious actors using AI-generated messages are impersonating senior U.S. officials to establish rapport with targeted individuals, steal sensitive personal information, and commit financial fraud).
[xv] See Rothman, The Inalienable Right of Publicity, supra note vii at 189 (arguing that treatment of the right to control individual identity as a property right could lead to significant loss of control and force unwanted commercialization and commodification of a person’s image).
[xvi] See Rothman, Navigating the Identity Thicket, supra note ix at 1289 (explaining that the dominant account of trademark law is commercial based by protecting trademark holders from confusingly similar mark usage that dilutes their market value).
[xvii] See Schliep, supra note i (demonstrating the growing trend towards trademark law for personal identity protection from AI misuse among celebrities).
[xviii] See id. (noting that trademark usage against AI identity misuse is a limited means of protection serving more as notice that the owner is serious about their IP rights rather than actual grounds for an infringement suit).
[xix] See The Lanham Act, 15 U.S.C. §§ 1051–1127 (2021) (exhibiting the Lanham Act’s creation of a federal trademark registration system providing injunctive or monetary relief for infringement and false endorsement claims).
[xx] See The Lanham Act, 15 U.S.C. §§ 1127, 1114 (2021) (providing the statutory definition of trademark as any word, symbol, or device used to identify and distinguish goods and services in commerce and outlining its protections and remedies against unauthorized uses likely to cause consumer confusion in the marketplace).
[xxi] See United States Patent and Trademark Off., USPTO, https://www.uspto.gov/trademarks/search/likelihood-confusion [https://perma.cc/5HJ9-8ZA2] (last visited Feb. 12, 2026) (explaining that trademark law enables consumers to identify and distinguish goods or services in the marketplace by protecting trademarks against the likelihood of confusion); see also Sierra IP Law, Likelihood of Confusion, Sierra IP Law, https://sierraiplaw.com/likelihood-of-confusion [https://perma.cc/7Q6H-PVW8] (last visited Feb. 12, 2026) (explaining that trademark law is focused on whether an “ordinarily prudent consumer” would be misled into believing that different products or services come from or are affiliated with the same source).
[xxii] See Taco Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 780 (1992) (stating that trademark infringement claims under § 43(a) of the Lanham Act require proof of likelihood of consumer confusion determined by whether the public is likely to be deceived by similarity of commercial usage).
[xxiii] See Qualitex Co. v. Jacobson Products Co., Inc., 514 U.S. 159, 162–164 (1995) (finding that the Lanham Act ensures marketplace fairness by granting exclusive rights to register and protect trademarks, reduces consumer confusion by ensuring producers benefit from their reputation, and encourages production of quality goods while discouraging unfair competition).
[xxiv] See The Lanham Act, 15 U.S.C. § 1125(a)(1)(A) (2021) (establishing federal cause of action for unauthorized use of a person’s identity where such use is likely to cause confusion regarding connection, affiliation, or approval).
[xxv] See Igor Demak, The Lanham Act: A Comprehensive Guide to US Trademark Law, TramaTM (Oct. 2023), https://www.tramatm.com/en/blog/category/legal/the-lanham-act-a-comprehensive-guide-to-us-trademark-law [https://perma.cc/V43E-234X] (discussing the Lanham Act as vital legal framework governing brand protection to ensure consistent trademark treatment nationwide).
[xxvi] See Sami Alanazi, Seemal Asif, & Irene Moulitsas, Examining the Societal Impact and Legislative Requirements of Deepfake Technology: A Comprehensive Study, 14 Int’l J. of Social Science and Humanity 58, 58 (2024) (accounting for negative social consequences of AI deepfake misuse in creating unauthorized adult content, blackmailing individuals, spreading misinformation, and creating a lack of interpersonal trust and uncertainty).
[xxvii] See What Is the Lanham Act? The Trademark Law That Powers U.S. Brand Protection, District Trademark (May 28, 2025), https://district-trademark.com/insights-trademark-news/what-is-the-lanham-act-the-trademark-law-that-powers-u-s-brand-protection [https://perma.cc/NCF9-NYJH] (explaining that Lanham Act is the “backbone of brand protection strategy” by protecting business names, logos, slogans, and the appearance and feel of product packaging).
[xxviii] See Rothman, Navigating the Identity Thicket, supra note ix at 1332–37 (critiquing the expansion of trademark law into areas traditionally outside its scope, such as addressing personality-based injuries, and warning that such expansions may undermine trademark law’s core objectives, restrict fair competition, and limit free speech).
[xxix] See id. at 1337–1348 (asserting that increasing reliance on trademark law to address conflicts with right of publicity and personal identity harm exists in response to the absence of a cohesive federal framework).
[xxx] See id. at 1271–75 (explaining that the right of publicity has long been directed at protecting both economic and personal interests of identity-holders, including autonomy and dignity, and emphasizing its role as a doctrine specifically designed to address unauthorized uses of a person’s identity); see also Schliep, supra note i (mentioning that right of publicity statutes are better suited for safeguarding against unauthorized AI replicas because they largely cover commercial use of a person’s likeness and apply in situations where trademark protections do not).
[xxxi] See Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 569, 573 (emphasizing that the right of publicity safeguards the proprietary interest of individuals’ commercial use of their own identity, providing an economic incentive for them to invest in creating works of public interest).
[xxxii] See Rothman, Navigating the Identity Thicket, supra note ix at 1278 (highlighting that the right of publicity protects individuals against unauthorized uses of their identities, often without regard to confusion or connection to specific goods or services, whereas trademark law primarily focuses on consumer confusion and source identification).
[xxxiii] See U.S. Copyright Off., Copyright and Artificial Intelligence, Part 1: Digital Replicas, 11 (July 31, 2024), https://www.copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-1-Digital-Replicas-Report.pdf [https://perma.cc/FKD2-NHXX] (“Intended to protect aspects of an individual’s identity, the right of publicity may be the most apt state law remedy for unauthorized digital replicas.”); see also Schliep, supra note i (suggesting that right of publicity provides broader protection than trademark law in cases of unauthorized AI replicas because it covers commercial use of a person’s likeness and can apply in situations where trademark protections may not).
[xxxiv] See U.S. Copyright Off., supra note xxxiii at 11–12 (explaining inconsistency in state right of publicity laws regarding AI replicas where some states protect aspects that merely “evoke” an individual and other states restrict rights to specific groups).
[xxxv] See id. at 11, 16 (stating that no federal right of publicity exists and that state laws vary significantly regarding permissible commercial use, intermediary liability, applicable First Amendment protections, and jurisdictional rules and available remedies).
[xxxvi] See id. at 12 (providing Indiana and Illinois as examples of states with broad protection for aspects of identity such as gestures, mannerisms, and any other attribute that serves to identify an individual to “a reasonable viewer or listener”).
[xxxvii] See id. at 12–13 (mentioning narrow coverage of some states’ right of publicity statutes and their lack of ability to provide protection against many types of digital replica uses).
[xxxviii] See id. at 11 (noting that state right of publicity laws—whether statutory, common-law, or both—vary widely, covering attributes from gestures and voices to restricting rights to professional performers, soldiers, or the deceased).
[xxxix] See id. at 14–15 (highlighting uneven scope of state right of publicity laws).
[xl] See U.S. Copyright Off., supra note xxxiii at 14–15 (reporting that states right of publicity protections vary from those domiciled in state to more minimal restrictions in other states, with remedies ranging in duration and amounts across U.S.).
[xli] See Rothman, Navigating the Identity Thicket, supra note ix at 1279 (arguing that inconsistent state right of publicity law creates uncertainty that makes navigation of personal conflicts difficult to manage, with no clear notion of the correct, applicable state law).
[xlii] See Jennifer E. Rothman, The Right of Publicity: Privacy Reimagined for a Public World, 36 Cardozo Arts & Entm’t L. J. 573, 599 (Jul. 27, 2018) [hereinafter Rothman, The Right of Privacy] (using states that limit right of publicity actions to those in which a person’s identity was used for a commercial purpose to show that individuals’ lacking significant financial resources may find legal action impractical in such instances).
[xliii] See Schliep, supra note i (demonstrating aggressive trademark strategies among celebrities like Taylor Swift and Matthew McConaughey in retaining sophisticated legal teams and filing “hundreds” of trademark applications, successfully communicating their capacity and will to litigate for their protection).
[xliv] See Stacey L. Dogan & Mark A. Lemley, What the Right of Publicity Can Learn from Trademark Law, 58 Stan. L. Rev. 1161, 1176, 1190 (2006) (implying that public association of a celebrity’s name or image with certain products or endorsements can serve as powerful tool in trademark disputes as celebrity personas are often used as symbols in the marketplace, similar to trademarks).
[xlv] See Rothman, The Right of Privacy, supra note xlii at 599 (arguing that individuals without significant financial resources lack “bankable personalities” that may not be protected by trademark law, nor some state right of publicity laws).
[xlvi] Contrast id. (suggesting that ordinary individuals lack trademarkable identities); with Dogan & Lemley, supra note xliv (noting celebrities that derive economic value from controlling the affiliation of their name, image, or likeness with merchandise).
[xlvii] See Chesney & Citron, supra note iv at 1792 (stating that civil trademark suits are expensive for victims of deep-fake abuse, with financial burden acting as deterrence to possible relief).
[xlviii] See U.S. Copyright Off., supra note xxxiii at 14–15, 22 (reporting that state limits regarding jurisdiction and remedies in right of publicity law restrict individuals from being able to protect their identities from AI digital replicas, creating an urgent need for federal legislation in AI digital replica cases).
[xlix] See Rothman, The Inalienable Right of Publicity, supra note vii at 232–233 (highlighting how powerful celebrities with greater financial resources can negotiate favorable terms to protect their identities from misuse more than individuals with less power).
[l] See Schliep, supra note i (suggesting that actor Matthew McConaughey’s trademark filings may offer him some identity protection against AI misuse but may be incomplete unless the trademarks are actively used in commerce).
[li] See U.S. Copyright Off., supra note xxxiii at 23 (noting the shortcomings of existing law for identity protection as inconsistent and insufficient without new federal legislation to protect against unauthorized digital replicas of a person).
[lii] See Daniel Mullarkey & Dominique Smith, Trademark Risks in the AI Age, JD Supra (Nov. 13, 2023), https://www.jdsupra.com/legalnews/trademark-risks-in-the-ai-age-5107146 [https://perma.cc/4B9G-76LY] (warning on stretching trademark doctrine to protect against AI misuse at risk of trademarks becoming generic source identifiers, contradicting law’s purpose of protecting specific brand signifiers).
[liii] See U.S. Copyright Off., supra note xxxiii at 22–23 (emphasizing the urgent need for federal legislation addressing unauthorized use of identity with AI digital replicas to keep up with the speed and scale of AI dissemination).
[liv] Compare Chesney & Citron, supra note iv at 1792 (highlighting deterrent effect of trademark litigation expenses on victims of AI misuse); to Dogan & Lemley, supra note xliv at 1176, 1209–1210 (demonstrating incentive effect of trademark litigation due to celebrity power and financial resources).
