U.S. – Washington strengthens protection against deepfakes

From 11 June 2026, Washington’s Personality Rights Act will also protect individuals against the unauthorised use of forged digital likeness, a new category that may also cover AI generated deepfakes. The amendment also strengthens the applicable remedies by increasing the civil penalty and allowing claims for non-economic damages. In this article, we will zoom in on the changes introduced by the amendment, the meaning of forged digital likeness and the sanctions and liabilities that may apply in the event of an infringement.

Through Substitute Senate Bill 5886, Washington is expanding the scope of its existing Personality Rights Act to provide individuals with additional protection against AI-generated deepfakes. The amendment introduces the concept of a “forged digital likeness”, bringing AI-generated representations of individuals within the scope of personality rights. The unauthorised use of a person’s forged digital likeness may give rise to civil liability and a claim for damages. The amendment entered into force on 11 June 2026.

The Personality Rights Act recognises an individual’s proprietary right in their name, voice, signature, photograph and likeness. These rights apply regardless of whether the individual chooses to commercialise them, and they remain in force throughout the individual’s lifetime, continuing for a certain period after death. They may also be transferred, assigned or licensed.

Generally, the unauthorised use of any of these protected attributes constitutes an infringement, irrespective of whether the use is made for profit or for non-profit purposes. The Act does, however, provide for exceptions, including uses related to education, politics and matters of public interest.

Against this backdrop, the rise of AI-generated deepfakes revealed a gap in the existing legal framework. Deepfakes can create highly realistic audiovisual representations of individuals, yet these representations did not clearly fall within the established categories of protected personality rights. To address this gap, the Washington legislature has chosen to introduce a new personality right covering “forged digital likenesses”.

From 11 June 2026, the Personality Rights Act will also cover the use of a person’s “forged digital likeness”.

The Act defines a “forged digital likeness” as a visual representation which is either persistent or transmitted in real time of an actual and identifiable individual, or an audio recording which is either

persistent or transmitted in real time of an actual and identifiable individual's voice, which:

1. has been digitally created, adapted, altered, or modified to be indistinguishable from a genuine visual representation or audio recording of the individual;
2. misrepresents the appearance, speech, or conduct of the individual; 
3. and is likely to deceive a reasonable person into believing that the visual representation or audio recording is genuine.

The definition is drafted in technology-neutral terms. It can therefore apply not only to deepfakes, but also to other applications that fall within its scope, such as AI-generated voice clones or face swapping in real time. Importantly, all three conditions must be met before a representation or recording can qualify as a forged digital likeness. A deepfake will for example not automatically be covered by the new provision. Among other things, it will need to be shown that the deepfake is likely to deceive a reasonable person into believing that it is genuine. The interpretation of these criteria will likely be further developed through case law.

As is the case for the other personality rights protected under the Act, the unauthorised use of a person’s forged digital likeness constitutes an infringement. The civil penalty for infringements of personality rights has been increased from USD 1,500 to USD 3,000. In addition, the infringer is liable for any actual damages resulting from the violation. 

Where the infringement concerns a forged digital likeness, the Act provides for an additional layer of liability. In such cases, the infringer may also be held liable for non-economic damages arising from the violation, such as reputational harm, regardless of whether the unauthorised use resulted in any profit. 

Risks related to AI can be addressed through different regulatory approaches. Rather than introducing an entirely new regulatory regime, the Washington legislature has made a targeted amendment to an established legal framework. By extending personality rights to forged digital likeness, the Act provides individuals with protection against the unauthorised use of AI generated representations. 

Sabra Ibnouthen