Digital Replicas, Synthetic Performers, and Advertising Law
Laura J. Protzmann, Attorney, National Advertising Division & AI, BBB National Programs
The use of artificial intelligence (AI) to generate realistic human likenesses increasingly impacts advertising content and raises new legal concerns. These issues are especially timely as a new New York law regulating the use of AI-generated synthetic performers in commercial advertising takes effect today, June 9, 2026.
A synthetic performer is an AI-generated or digitally created human character that is not based on or recognizable as a real person, while an AI-generated digital replica is a realistic depiction of an actual person’s face, voice, likeness, or persona, and may present the person in a false context.
Digital replicas are not adequately protected by existing right of publicity or copyright laws, while advertising law provides some protection for how the content could be used to deceive consumers.
In advertising, where endorsements carry economic and persuasive value, it is essential to preserve trust, prevent deception, and protect both individuals and consumers. Digital replicas could show celebrities, consumers reviewing a product, or experts and can be used to mislead consumers into falsely believing a product endorsement is real, or that a product performance (for example, demonstration of a product on a person’s face) is based on actual experience. Even with consent to use a person’s likeness, certain uses of AI‑generated replicas can violate advertising law.
An additional consideration is when a likeness is not based on a real person. Whereas a “digital replica” replicates an actual person, “synthetic performers” do not. However, a synthetic performer also may be misleading if consumers reasonably believe that the likeness is a real person endorsing a product or service based on actual experience.
In December, New York passed a law (S. 8420), which goes into effect today, June 9, 2026, regulating the use of AI-generated synthetic performers in commercial advertising. The New York law defines synthetic performers as “a digitally created asset… that is intended to create the impression that the asset is engaging in an audiovisual and/or visual performance of a human performer who is not recognizable as any identifiable natural performer.”
This law, which applies to all advertising published or disseminated in New York regardless of where it was created, states that use of such synthetic performers must be “conspicuously disclose[d].” The law does not apply to all uses of AI in advertising, or to advertising for expressive works where the synthetic performer is featured in the underlying work.
Expanding the law, as New York has done, will help protect consumers by providing transparency on the use of an AI-generated likeness that purports to be human.
While disclosures can help clarify a claim, they cannot cure deception, contradict the main message of the claim, or otherwise legitimize false claims, unauthorized endorsements, or misleading representations of authenticity. A disclosure also may help provide greater detail on the context of the content’s creation, and a disclosure that a likeness is “AI-generated” should be considered. However, where the core deception is the implication of authenticity and a human endorsement that does not exist, use of a disclosure that the content is “AI-generated” would be insufficient since the underlying claim is not truthful.
Synthetic performer laws address some, but not all, AI disclosure issues.
All claims made by synthetic performers must be accurate, and a synthetic performer cannot state that they are human or real or that their statements are based on actual experience. Using a synthetic performer to imply an endorsement of a product that does not exist or to make false or misleading advertising claims, even with a disclosure, may be a violation of advertising law. Again here, disclosures cannot make otherwise false statements true – a virtual influencer cannot say “I am human” with an “AI-generated” disclosure that contradicts the main claim.
Through its work, thousands of misleading advertising claims have been removed from the marketplace. NAD continues to apply advertising law and principles, including those guiding disclosures and endorsements, to emerging areas such as AI-generated content.
NAD’s independent review provides objective evaluation of advertising content, guidance for industry participants, voluntary compliance mechanisms, and frameworks for fair competition. This type of accountability program helps businesses evaluate substantiation for advertising content, align with industry standards, and improve transparency, thus reducing the risk of consumer deception. These processes help create greater consistency and accountability across industries while reinforcing consumer trust.
Truthful advertising benefits both consumers and businesses. Consumer trust is foundational to a healthy and reliable marketplace. As markets continue to evolve, collaborative approaches that combine regulation, voluntary compliance, and independent oversight will remain essential components of modern consumer protection by helping improve transparency, reduce deceptive practices, and strengthen confidence in advertising claims. This is particularly important in fast-moving sectors where innovation can outpace formal regulatory development.
Learn more about NAD’s work on AI cases, or attend our 2026 NAD Conference, “Ad Law in Motion,” to discuss this and other emerging issues.
NAD’s work on AI was supported by cy pres funding, which allows courts to direct unclaimed class action settlement funds to organizations advancing the interests of affected consumers. AI-related advertising cases are particularly well-suited to cy pres support because they help provide guidance on emerging technologies and complex claims that consumers may struggle to evaluate.
The use of artificial intelligence (AI) to generate realistic human likenesses increasingly impacts advertising content and raises new legal concerns. These issues are especially timely as a new New York law regulating the use of AI-generated synthetic performers in commercial advertising takes effect today, June 9, 2026.
A synthetic performer is an AI-generated or digitally created human character that is not based on or recognizable as a real person, while an AI-generated digital replica is a realistic depiction of an actual person’s face, voice, likeness, or persona, and may present the person in a false context.
Digital replicas are not adequately protected by existing right of publicity or copyright laws, while advertising law provides some protection for how the content could be used to deceive consumers.
- Right of Publicity Laws: Require consent to use an individual’s likeness, but such laws are inconsistent, state-based, and generally limited to commercial uses. Right of publicity laws also fail to address many modern harms associated with AI-generated digital replicas, including deceptive impersonation, false endorsement, fraud, and reputational injury in commercial and other contexts.
- Copyright Law: Generally does not protect identity, such as a person’s voice, facial structure, or mannerisms, unless fixed in a tangible medium of expression. In the Copyright Office’s report, Copyright and Artificial Intelligence Part 1: Digital Replicas (2024), it proposed a new federal digital replica right – one that would protect all individuals from unauthorized realistic digital replicas during a person’s lifetime, but such a proposal would still need to be passed by the U.S. Congress.
- Advertising Law: Addresses some issues related to the use of digital replicas, especially when they are used in false endorsements and with misleading claims.
In advertising, where endorsements carry economic and persuasive value, it is essential to preserve trust, prevent deception, and protect both individuals and consumers. Digital replicas could show celebrities, consumers reviewing a product, or experts and can be used to mislead consumers into falsely believing a product endorsement is real, or that a product performance (for example, demonstration of a product on a person’s face) is based on actual experience. Even with consent to use a person’s likeness, certain uses of AI‑generated replicas can violate advertising law.
An additional consideration is when a likeness is not based on a real person. Whereas a “digital replica” replicates an actual person, “synthetic performers” do not. However, a synthetic performer also may be misleading if consumers reasonably believe that the likeness is a real person endorsing a product or service based on actual experience.
In December, New York passed a law (S. 8420), which goes into effect today, June 9, 2026, regulating the use of AI-generated synthetic performers in commercial advertising. The New York law defines synthetic performers as “a digitally created asset… that is intended to create the impression that the asset is engaging in an audiovisual and/or visual performance of a human performer who is not recognizable as any identifiable natural performer.”
This law, which applies to all advertising published or disseminated in New York regardless of where it was created, states that use of such synthetic performers must be “conspicuously disclose[d].” The law does not apply to all uses of AI in advertising, or to advertising for expressive works where the synthetic performer is featured in the underlying work.
Expanding the law, as New York has done, will help protect consumers by providing transparency on the use of an AI-generated likeness that purports to be human.
Disclosures
An advertiser is responsible for ensuring statements made about a product or service, even those made by digital replicas or synthetic performers, are based on real experience and truthful, whether a celebrity, influencer, or consumer is portrayed. All disclosures must be clear, conspicuous, and unavoidable for consumers.While disclosures can help clarify a claim, they cannot cure deception, contradict the main message of the claim, or otherwise legitimize false claims, unauthorized endorsements, or misleading representations of authenticity. A disclosure also may help provide greater detail on the context of the content’s creation, and a disclosure that a likeness is “AI-generated” should be considered. However, where the core deception is the implication of authenticity and a human endorsement that does not exist, use of a disclosure that the content is “AI-generated” would be insufficient since the underlying claim is not truthful.
Synthetic performer laws address some, but not all, AI disclosure issues.
All claims made by synthetic performers must be accurate, and a synthetic performer cannot state that they are human or real or that their statements are based on actual experience. Using a synthetic performer to imply an endorsement of a product that does not exist or to make false or misleading advertising claims, even with a disclosure, may be a violation of advertising law. Again here, disclosures cannot make otherwise false statements true – a virtual influencer cannot say “I am human” with an “AI-generated” disclosure that contradicts the main claim.
Independent Industry Self-Regulation Can Play a Role
Given the speed of AI development and the difficulty in assessing how to apply current laws to new technology, independent industry self-regulation, such as that provided by BBB National Programs’ National Advertising Division (NAD) can provide an agile mechanism to address emerging issues. The U.S. advertising industry founded the NAD in 1971 as a system of independent industry self-regulation to build consumer trust in advertising and support fair competition in the marketplace.Through its work, thousands of misleading advertising claims have been removed from the marketplace. NAD continues to apply advertising law and principles, including those guiding disclosures and endorsements, to emerging areas such as AI-generated content.
NAD’s independent review provides objective evaluation of advertising content, guidance for industry participants, voluntary compliance mechanisms, and frameworks for fair competition. This type of accountability program helps businesses evaluate substantiation for advertising content, align with industry standards, and improve transparency, thus reducing the risk of consumer deception. These processes help create greater consistency and accountability across industries while reinforcing consumer trust.
Truthful advertising benefits both consumers and businesses. Consumer trust is foundational to a healthy and reliable marketplace. As markets continue to evolve, collaborative approaches that combine regulation, voluntary compliance, and independent oversight will remain essential components of modern consumer protection by helping improve transparency, reduce deceptive practices, and strengthen confidence in advertising claims. This is particularly important in fast-moving sectors where innovation can outpace formal regulatory development.
Learn more about NAD’s work on AI cases, or attend our 2026 NAD Conference, “Ad Law in Motion,” to discuss this and other emerging issues.
NAD’s work on AI was supported by cy pres funding, which allows courts to direct unclaimed class action settlement funds to organizations advancing the interests of affected consumers. AI-related advertising cases are particularly well-suited to cy pres support because they help provide guidance on emerging technologies and complex claims that consumers may struggle to evaluate.