Intellectual Property & Branding

Texas Quick Facts: Publicity Rights at a Glance

Amber Petrig

29 Oct 2025 • 10 min read

Core authorities. Tex. Prop. Code §§ 26.001–.015; Kimbrough v. Coca‑Cola/USA, 521 S.W.2d 719 (Tex. Civ. App. 1975); Henley v. Dillard Dep’t Stores, 46 F. Supp. 2d 587 (N.D. Tex. 1999); Doggett v. Travis Law Firm, 555 S.W.3d 127 (Tex. App.—Houston [1st Dist.] 2018).

Rights of publicity and personhood are becoming more and more important in today's media but differ widely from one state to the next. Check out our article below to build a basic understanding of these rights as they exist in the state of Texas and prepare your legal or media practice for the use of deepfakes and other forms of AI generated content.

The Buddy Holly Bill: A Decedent's Property Right by Design (Tex. Prop. Code §§ 26.001–.015)

Texas codifies a post‑mortem right of publicity as a transferable property interest, distinct from common‑law misappropriation for the living. Chapter 26 addresses ownership, perfection, enforcement, exemptions, and remedies.

Scope

Protected indicia: name, voice, signature, photograph (still or moving), likeness. §§ 26.001–.002.
Commercial use trigger: use in connection with products, merchandise, or goods or for advertising, selling, or soliciting. § 26.011.
Applicability: individuals alive on or after Sept. 1, 1987, or who died on or after Jan. 1, 1937, whose identity had or later acquired commercial value. § 26.003.

Ownership and Transfer

Freely transferable by contract, trust, or will, before or after death. § 26.004.
If not transferred before death, the right vests by statute (spouse then descendants then parents; per stirpes). Majority owners (>50%) may act for all. § 26.005.

Post‑Mortem Term, Registration, and Exercising the Right

Term: 50 years after death; thereafter uses are permitted by anyone. § 26.012(d).
First year after death: to exercise the right, an owner must register a claim with the Texas Secretary of State; registration is prima facie evidence and prevails over conflicting unregistered claims. §§ 26.006–.008.
After the first year: the right may be exercised with or without registration (registration remains useful for notice and priority). § 26.009.
Termination: absent transfer or statutory vesting within one year of death, the right terminates. § 26.010.

Exemptions and Media Carve‑Outs

Expressive or informational works (plays, books, films, radio/TV programs; newspaper/magazine articles); material primarily of political or newsworthy value; single original works of fine art; and ads for those expressive works. § 26.012(a).
Media‑enterprise safe harbor for news, public affairs, sporting events, or political campaigns; consent is still required when a use is “integrally and directly connected” to commercial sponsorship or paid advertising. § 26.012(b)–(c).

Remedies and Risk

Monetary relief: greater of actual damages or $2,500, plus attributable profits, potential exemplary damages, and reasonable attorneys’ fees and costs. § 26.013.
Equitable relief: injunctions to stop ongoing or imminent unauthorized campaigns.

Case Law Corner: How Courts Describe and Apply Texas Publicity Rights for the Living

Kimbrough v. Coca‑Cola/USA (Tex. Civ. App. 1975)

Kimbrough recognized the common‑law appropriation of name and likeness for living persons, establishing that using a person’s identity in advertising without consent is actionable and providing the privacy‑tort backdrop for Texas’s statutory post‑mortem regime.

Henley v. Dillard Dep’t Stores (N.D. Tex. 1999)

Henley treated the Texas right of publicity as a distinct, property interest, separate from privacy torts. The court sustained claims tied to retail promotion using Don Henley’s identity, underscoring endorsement control and the economic value of celebrity identity (often alongside Lanham Act false‑endorsement theories).

Doggett v. Travis Law Firm (Tex. App.—Houston [1st Dist.] 2018)

Doggett emphasizes modern limits: (1) the appropriation claim is personal—business entities cannot assert misappropriation of “name or likeness” as such; and (2) plaintiffs must plead commercial use (advertising, selling, or soliciting) rather than reputational theories.

Synthesis

Together, Kimbrough establishes the privacy‑based tort for the living, Henley frames identity as a transferable economic interest, and Doggett clarifies the commercial‑use pleading. Against this backdrop, Chapter 26 codifies a property right in the identities of deceased individuals with assignment and post‑mortem enforcement.

Property Right vs. Privacy Tort: Why the Distinction Matters

In Texas, post‑mortem rights in identity are a property interest by statute (Chapter 26), while claims for living persons proceed under common‑law misappropriation. That split drives ownership, transfer, remedies, and how you structure deals and allocate risk.

Transferability

Decedents: transferable/licensable property right in name, voice, signature, photograph, likeness; vests by statute if not transferred.
Living persons: personal claim; businesses obtain a license from the individual or their agent rather than an assignment of the tort itself.

Post‑Mortem Control

Defined 50‑year term with first‑year registration mechanics for exercising and prioritizing claims.
Plan NIL in estate and business portfolios; brands must confirm chain‑of‑title before merchandise or campaigns.

Remedies and Valuation

Property regime: damages, profits, and/or fees; injunctions to shut down misuse.
Privacy tort: focus on unauthorized commercial exploitation and resulting injury; watch implied‑endorsement cues in advertising.

Boundaries and Free Speech: Newsworthiness, Expressive Works, and Ads

Texas draws sharp lines between editorial and expressive uses and commercial endorsement. For deceased individuals, § 26.012 permits specified expressive and informational uses; for living persons, similar principles flow from First Amendment and common‑law doctrines. Once content becomes an ad or paid tie‑in, consent analysis changes.

News and public affairs

Reporting and commentary are generally permitted without consent for media enterprises. § 26.012(b).
Do not convert editorial into ad creative without consent; clearly label sponsored content and avoid endorsement signals in editorial pieces.

Expressive works

Plays, books, films, radio or TV programs, magazine or newspaper articles, materials primarily of political or newsworthy value, and single original works of fine art are permitted. § 26.012(a).
Ads for those expressive works are permitted (§ 26.012(a)(5)); using identity to sell unrelated products or services usually requires consent.
Outside news, public affairs, sport or political coverage, media enterprises need consent when the use is “integrally and directly connected” to commercial sponsorship or paid advertising. § 26.012(b)–(c).

Parody and satire

Often protected within an artistic work; context matters. In ads, parody elements raise exposure—obtain consent when the creative reasonably identifies a person.

Comparative and nominative references

Editorial identification is typically permissible; in advertising, minimize use to what’s necessary and avoid photos, voices, and signatures absent a license. Disclaimers help but are not a substitute for consent.

First Amendment balancing in practice

Document editorial intent and ensure the use serves expressive or informational purposes, not a monetized endorsement.
Audit creative for endorsement signals (product placement, calls to action, first‑person voice, “thank you” posts, or paid‑ad hashtags for example).

Remedies, Risk, and Deal Terms That Matter

Relief and exposure for decedent rights

Damages and profits: greater of actual damages or $2,500 per violation, plus attributable profits, potential exemplary damages, and reasonable attorneys’ fees and costs (Tex. Prop. Code § 26.013).
Injunctive relief: move quickly to halt ongoing or imminent misuse and preserve evidence.
Scope matters: unauthorized use “in connection with products” or “for advertising, selling, or soliciting” triggers liability (§ 26.011); expressive and news uses are carved out (§ 26.012); after 50 years from death, the chapter no longer applies (§ 26.012(d)).

Insurance: transfer and quantify the risk

Review media liability and advertising‑injury coverage for right‑of‑publicity or NIL treatment; many CGL forms exclude or sublimit this coverage.
Confirm how synthetic media, voice cloning, or biometric‑adjacent exposures are handled; consider riders and incident‑response add‑ons. See deepfake endorsement risks and Texas policy context in the Responsible AI Governance Act.
Maintain consent artifacts and chain‑of‑title for tenders and defense; align ad‑buying and vendor contracts with coverage.

Contracts: clauses that do real work

AI/synthetic media: define permitted uses (voice cloning, avatars, transformations, etc.), training‑data sources, model governance, output warranties; then prohibit unapproved reuse or retraining; require labeling and watermarking where used.
License scope: identity elements (including name, image, likeness, voice, or signature), media and channels (paid social, retail media, CTV/OTT), geography, duration, exclusivity, amplification or whitelisting, approvals. Coordinate with performer and influencer agreements.
Reps, warranties, and indemnities: obtain these from agencies, studios, creators that no third‑party publicity, privacy, or IP rights are infringed; include defense and tender obligations and risk‑aligned caps.
Termination and takedown: morals clauses, rapid takedown SLAs, and post‑termination wind‑down rules for assets and trained models.

Vendors and platforms: pass‑through compliance

Require platforms, DSPs, and publishers to promptly remove unauthorized uses, honor notices, and preserve logs; secure audit rights over asset provenance and model or version control for synthetic media.
Collect model releases, estate authorizations, photographer and producer licenses, and any Chapter 26 registrations or assignments. See ad and data governance in FTC’s cloud/AI report and PADFA implications.

Recordkeeping and readiness

Maintain a rights registry (consents, licenses, consideration proof, expirations, territory and media limits); store Secretary of State filings for deceased individuals where applicable (Tex. Prop. Code §§ 26.006–.007).
Preclear creative referencing real or AI‑simulated identity; align with privacy compliance foundations and operational guidance on AI assistants privacy risks.
Stand up fast takedown and remediation for impersonation and deepfakes; preserve evidence; coordinate insurer notices and vendor clawbacks. See deepfake endorsement risks.

Modern Use Cases: AI, Deepfakes, Influencers, and Everyday Business Scenarios

In practice, the analysis turns on whether the use sells products or services or ties to merchandising or paid promotion. Handle common scenarios as follows.

1) AI voice cloning of a Texas musician for an ad

Cloning or synthesizing a recognizable voice for advertising is a commercial use. For living artists, obtain a written license covering “voice,” “likeness,” and synthetic derivatives; for deceased artists, confirm Chapter 26 ownership and any first‑year registration. Include AI clauses (training scope, no reuse, watermarking or disclosure, and takedown). See deepfake endorsement risks and Texas policy context in the Responsible AI Governance Act.

2) Synthetic avatar endorsing a product that evokes a real person's likeness

A synthetic avatar can still identify a person if audiences reasonably recognize them—creating implied‑endorsement risk. Run a recognition review (distinct features, catchphrases, wardrobe, and/or settings) and secure rights when risk is non‑trivial; disclaimers help but don’t replace consent.

Organic posts often become paid ads (whitelisting or allowlisting) and syndicate to retail media or CTV—expanding scope. Cover amplification, whitelisting, and platform syndication; define windows, geographies, formats and approvals, exclusivity, and takedown SLAs. Align with performer and influencer agreements.

4) Sports merchandising featuring a player’s nickname and likeness

Confirm approvals across layers: player (or estate), players association or league, team marks, and third‑party creators (photographers and artists). Specify product categories, territories, royalties, QC, sell‑off periods, audit rights, and counterfeit enforcement.

5) Political advertising referencing a public figure’s image

Political commentary and news stories are generally expressive uses, but paid spots that imply endorsement or sell products or services raise risk. Avoid endorsement cues without consent; if the figure is deceased, verify Chapter 26 status and any filings before any commercial tie‑in.

6) Reusing an ex‑employee’s headshot on a business website

Employment consents are typically narrow and end with the role. Remove or re‑license promptly; update HR offboarding to schedule takedowns and capture fresh consents as needed.

What to do across scenarios

Secure written, scope‑specific consent (identity elements, media, geography, duration, AI and synthetic limits, sublicensing).
Map ownership: living (common‑law) vs. deceased (Chapter 26). Capture estate proofs and filings where applicable.
Pass through indemnities; implement prompt‑removal obligations with vendors and platforms. See AI assistants privacy risks.
Create fast takedown protocols and escalation paths for manipulated media; see deepfake endorsement risks.

Checklist: Using a Texan’s Name, Image, Voice, or Likeness (One‑Screen)

Map identity elements. Name, image, photograph, voice, likeness (avatars and look‑alikes), signature.
Screen for exemptions. Ensure the use is not purely news or editorial or an expressive work without an advertising tie‑in. Ads for expressive works are still ads.
Get written consent and license with precise scope. Media and channels (including paid social media, retail media, and CTV), territory, duration, exclusivity, sublicensing, AI or synthetic modifications, and training and output limits; include whitelisting and allowlisting. See deepfake endorsement risks and performer/influencer agreements.
If a minor is involved, verify authority. Obtain guardian consent; confirm age and legal authority.
Nail commercial terms. Compensation (fees and royalties), approval rights, morals clauses, termination and wind‑down, takedown SLAs, exclusivity and conflicts.
Warranties and indemnities and chain‑of‑title. Include warranties and indemnities from agencies, vendors, photographers, creators. Collect releases, estate authorizations, rights transfers.
Deceased individuals. Confirm Chapter 26 ownership and any Secretary of State filings (especially first year); confirm remaining term.
Usage governance. Asset registry for identity‑bearing content; track expirations and limits; align with privacy foundations.
Train teams and preclear creative use. See Texas AI policy context in the Responsible AI Governance Act and operational issues in AI assistants privacy risks.
Implement fast takedowns and remediation. 24/7 contacts, platform escalation paths, vendor obligations for removal or corrections, including manipulated media. See FTC on cloud/AI and PADFA.

FAQs: Texas Right of Publicity

Is Texas right of publicity a tort?

Post‑mortem publicity is a transferable property right (Chapter 26). For living persons, Texas recognizes a separate common‑law misappropriation of privacy tort.

How long does protection last after death?

50 years from death (subject to first‑year registration mechanics and choice‑of‑law/residency nuances). After 50 years, Chapter 26 no longer applies.

What counts as commercial use?

Advertising, endorsements, promotions, merchandising, or similar monetized contexts. Editorial or news pieces and many expressive works are treated differently, but paid ads—even for expressive works—are analyzed as commercial. See deepfake endorsement scenarios and creator deal considerations.

Yes. Obtain written, scope‑specific consent or a license defining media and channels (including AI or synthetic outputs), geography, duration, sublicensing, and approvals. For minors, secure guardian consent.

No. Public availability does not grant a commercial‑use license. Scraping, AI training, and synthetic avatars can add risk—see Texas AI policy context and AI assistants privacy risks.

Can a company own or license these rights?

Yes. Estates, heirs, and assignees can assign or license post‑mortem rights; living individuals typically license their NIL for defined scopes. Treat NIL like IP: negotiate licenses, manage chain‑of‑title, and require platform and vendor takedowns. See FTC cloud/AI partnerships and PADFA.

Do First Amendment defenses bar all claims?

No. Exemptions and defenses are fact‑specific. Editorial or news pieces and many expressive uses are protected, but paid advertising and implied endorsements are scrutinized. For synthetic content, review deepfake endorsement risks.

Is there a registration requirement?

Yes—for the first year after death to exercise/prioritize the post‑mortem right. After that window, registration is optional but useful for notice and priority. Always confirm the current rightsholder and any filings before launching campaigns featuring a deceased individual.

Conclusion and CTA

Texas frames the right of publicity as a property right—one you can license, assign, and enforce post‑mortem—while preserving important news and expressive exceptions. Treat a person’s name, image, likeness, voice, and signature like any other IP asset: scope consent in writing, manage chain‑of‑title, and build governance for modern workflows that include AI and synthetic media. For practical guardrails on manipulated media and endorsements, see deepfake endorsement risks and Texas policy context in the Responsible AI Governance Act.

Work with Promise Legal

Get NIL licenses and AI/synthetic media clauses tailored to your campaigns and creator deals—coordinate with performer and influencer agreements.
Stand up compliance workflows: pre‑clear creative, pass through platform/vendor obligations, and align recordkeeping with privacy compliance foundations plus ad/data considerations in FTC cloud/AI partnerships and PADFA.
Request our downloadable one‑page Texas publicity checklist to operationalize consent, scope, approvals, expirations, and takedown protocols.
Have questions? Send them our way for inclusion in future FAQ updates, and subscribe for Texas‑focused NIL, AI, and advertising updates.

Amber Simon is an attorney working with Promise Legal who focuses on entertainment, media, and intellectual property in her legal practice. Stay tuned to future posts to keep up to date with her ongoing work concerning rights of publicity and personhood.