Legal protecion of identity in the era of generative artificial intelligence: challenges and possibilities for protection in Brazil

By Dannemann Siemsen

By:

Elisabeth Siemsen do Amaral, Cândida Ribeiro Caffé – Dannemann Siemsen partners;

Patricia Carvalho da Rocha Porto – Academic Coordinator at the Dannemann Siemsen Institute;

and Marcela Schmidt Silva – Junior Research Analyst

1 THE PROBLEM

The advancement of generative artificial intelligence (GAI) technologies has significantly expanded the risks of unauthorized use of identity attributes or of personal characteristics that identify a particular individual, such as name, image, voice, likeness, mannerisms, characteristic gestures, and other similar elements. These elements, traditionally situated within the domain of personality rights under Brazilian law, are increasingly assuming economic relevance in the digital environment and becoming susceptible to technological reproduction and manipulation, as in the case of deepfakes. This scenario enables both the commercial exploitation of such characteristics — including through digital replicas used in advertising campaigns and commercial content —¹ and the occurrence of significant harm, such as the abusive² and fraudulent use of identity, with reputational, economic, and political consequences. In this context, the challenges related to the legal protection of such elements are intensifying.

2 THE EXISTING LEGAL FRAMEWORK AND ITS GAPS

2.1 International Overview

In the United States, the response to this problem has been debated through the lens of enhanced protection for Name, Image, and Likeness (NIL). Under United States law, NIL is protected by the right of publicity, the latter being recognized as an intellectual property right that protects against the unauthorized commercial use of a person's name, image, or other recognizable aspects of identity. Traditionally associated with the commercial use of athletes' images, NIL has nonetheless had the scope of its protection called into question in that country. Recent official debates make clear that NIL violations are not confined to the purely commercial sphere, nor exclusively to athletes, but also encompass serious harm to dignity, reputation, and privacy, affecting both celebrities and ordinary citizens.³

In this context, trademark registration with the United States Patent and Trademark Office (USPTO) has come to be used as a preventive instrument against unauthorized uses, including those carried out by GAI. Although the legislation requires a link to an economic activity, the Office itself acknowledges that individuals may structure their identity as a "personal brand," for which it suffices to associate one's name, image, or other attributes with the provision of products or services, such as the production of informational content on social media platforms. By transforming one's own identity into a distinctive sign, the holder gains access to the mechanisms of trademark law to prevent the unauthorized reproduction of those elements. This strategy is not limited to static aspects of identity; it has been expanded to encompass characteristic expressions and dynamic signs, as illustrated by registrations involving actor Matthew McConaughey, who sought to protect his catchphrase and elements of his performance through sound and motion marks, with the aim of reinforcing his protection against unauthorized uses, including in the context of technological replication.⁴

Requests by celebrities for the registration of characteristic elements of their identity are not limited to the United States. In the United Kingdom, footballer Cole Palmer obtained, in November 2025, the registration of his characteristic celebration — consisting of the gesture of simulating feeling cold — as a motion mark with the UK Intellectual Property Office, thereby securing his exclusive economic exploitation of that element in commercial contexts.⁵ Similarly, well-known darts player Luke Littler, in an attempt to combat AI-generated deepfakes, applied to register his face as a trademark.⁶ The United Kingdom has no specific legislation protecting personality rights, nor does it confer any exclusive rights over name, image, appearance, or identity. In the case of celebrities, protection against the unauthorized exploitation of personality is achieved through other legal institutions, insofar as English courts employ existing legal doctrines to remedy such unauthorized uses — for example, through the doctrine of passing off.⁷

From a public policy standpoint, Denmark is proposing amendments to its copyright law to grant natural persons greater control over their voices and images, in an attempt to protect individuals from GAI-generated deepfakes. The country, in an unprecedented manner, seeks to protect personality rights through copyright protection.⁸ Although innovative, the proposal is still under discussion, particularly with regard to the most appropriate legal framework for such protection and the very need to create new rights.⁹

2.2 National Overview

Brazil likewise faces the dilemma of protecting the identity characteristics of natural persons — primarily, though not exclusively, celebrities — against unauthorized use by AI systems and deepfakes.¹⁰ However, the solutions adopted by other jurisdictions cannot be directly applied to the Brazilian legal system, which is structured around the centrality of the dignity of the human person and the protection of personality rights.

Nevertheless, with the advancement of AIG and deepfakes, the challenge arises of identifying, within Brazilian law, the legal mechanisms capable of offering additional layers of protection for identity elements — mechanisms that are effective in safeguarding such attributes across different use scenarios, especially when exploited for commercial purposes.

The foundation of this system finds protection in the Federal Constitution, which protects, among other personal attributes, the dignity of the human person, the honor, and the image of persons.¹¹ At the infra-constitutional level Personality rights are regulated by the Civil Code, pursuant to Articles 11 to 21. In particular, Article 20 prohibits unauthorized use of name, image, and other identity attributes, including for commercial purposes. Brazilian legal scholarship acknowledges that this list is not exhaustive,¹² admitting the protection of new personality attributes. This flexibility is fundamental, as it allows the legal system to keep pace with the challenges arising from technological transformations. Furthermore, Brazilian case law has contributed to the expansion of such protection by directly applying constitutional principles — especially the dignity of the human person — filling gaps and allowing the protection of situations not expressly provided for in civil legislation.¹³

To this layer is added the protection conferred by the General Data Protection Law (Lei Geral de Proteção de Dados — LGPD), whose Article 5, II, classifies biometric data as sensitive personal data, reinforcing the need for the data subject to maintain control over the use of attributes such as image and voice when processed for identification purposes. Within the domain of criminal law, Law No. 15,123/2025 entered into force in 2025, amending Article 147-B of the Penal Code to establish an aggravating circumstance in the offense of psychological violence against women when committed through the use of artificial intelligence or any other technological resource that alters the image or voice of the victim. It is also important to mention Bill No. 2,338/2023,¹⁴ the draft legislation for the regulation of AI in Brazil, already approved by the Federal Senate and currently pending before the Chamber of Deputies. This proposal provides that the protection of content in the form of image, audio, voice, or video depicting or identifying natural persons by AI systems must respect personality rights, as prescribed by the Brazilian Civil Code and applicable legislation.

2.2.1 Commercial Use of Identity Attributes in Brazil

The personal attributes of a person have long been commercially exploited by their owner, particularly by celebrities. The civil protection of such attributes through personality rights does not prohibit their commercial exploitation, provided that the holder's consent has been obtained. The elements of identity, when used for strictly personal purposes, enjoy all the prerogatives conferred by personality rights.¹⁵

However, when those elements begin to be used by the holder themselves for commercial purposes — whether through the economic exploitation arising from authorizations and other legal transactions directed at their monetization, or through the functionalization of such attributes as elements identifying goods or services in the marketplace and capable of channeling clientele,¹⁶ among other possibilities — they acquire patrimonial and economic content.¹⁷

It is therefore a fact that the identity characteristics of natural persons are commercially exploited by their holders or with their authorization, requiring different layers of legal protection as GAI and deepfakes continue to advance.

2.2.2 Some of the Available Protection Mechanisms Upon the Commercial Exploitation of Identity Attributes in Brazil

As already noted, civil liability for the unauthorized use — including for commercial purposes — of a person's image attributes and identity is provided for under the Civil Code. However, other statutes also address the commercial use of image, such as Law No. 9,615/1998, the Sports Act (Lei do Desporto), which provides, among other provisions, in its Article 87-A, that the right to use an athlete's image may be authorized or exploited by the athlete through a civil contractual arrangement setting out rights, obligations, and conditions that are not to be confused with the special sports employment contract.

When such characteristics come to be used in the marketplace to distinguish products or services, a layer of protection under the domain of industrial property arises. Under the terms of the Brazilian Industrial Property Act (Lei de Propriedade Industrial), only visually perceptible and distinctive signs may be registered as trademarks, provided they are capable of identifying the origin of products or services, pursuant to Articles 122 and 123, I. In this context, elements of personal identity — such as name, image, signature, and visual representations of a person's likeness — may be registered as trademarks, provided that the holder's authorization is obtained, pursuant to Articles 124, XV and XVI. A person's name, pseudonym, and image, when serving as constituent elements of a trademark or other distinctive sign, come to be protected under industrial property rights, subject to the rules and limits thereof.¹⁸

Other elements of identity may come to constitute trademark elements. In Brazil, the law does not prohibit the registration of motion marks and holograms — modalities that would, in principle, allow the protection of mannerisms and physical expressions that have become known as characteristic of a particular person, although their practical viability depends on specific regulation by the Brazilian Patent and Trademark Office (BPTO) and on the use of such elements as trademarks in a particular market segment. By using a person's identity attributes as registered distinctive signs, the holder gains access to the mechanisms of trademark law to prevent unauthorized uses, including by GAI, making this avenue a relevant preventive instrument for the protection of identity in the digital environment. For the trademark protection of voice or other auditory elements, and other non-visual elements, a legislative amendment — already under discussion — would be required.¹⁹

Additionally, characteristics that identify a person—such as voice, manner of walking, or image—when incorporated into a visual and sensory ensemble that is distinctive and identifies a product or service, establishments, packaging, among other possibilities, could, in theory, form part of a trade dress. In Brazil, the protection of trade dress is afforded indirectly, through the suppression of unfair competition, rather than through an autonomous intellectual property right. The recognition of trade dress as an autonomous intellectual property right in Brazilian jurisdiction would likewise require a legislative amendment for its full implementation.²⁰

Nevertheless, the scope of protection afforded by trademarks and trade dress is inherently limited. Such protection applies only to the products and services identified by the person's identifying elements, which does not offer comprehensive protection against all unauthorized uses of a person's image — particularly those generated and disseminated online by AI tools.

Beyond protection through distinctive signs, elements of a person's identity may be protected by Copyright through the concept of persona. Denis Borges Barbosa observes that, in the case of celebrities and public figures, the name, image likeness and other identitarian elements are not confined to private life but is rather the result of a continuous and creative effort of construction presented to the public, constituting a "work of fabulation." When the persona becomes distinguishable from the natural person and attains objectivity, it acquires autonomy and becomes a "construct" — that is, an authentic autonomous intellectual creation, detached from the natural person, and endowed with its own recognitional value. Article 8 of the Brazilian Copyright Act prohibits the protection of ideas or isolated elements, such as generic styles. Protection arises when such elements are organized in an original and recognizable manner, forming a unique set of behavioral, visual, and psychological characteristics capable of being identified by the public precisely as that character-construct.²¹

Thus, the holder may commercially exploit his or her public image without alienating his or her personality rights: the natural person remains intact, and only the persona — that is, the creative organization of characteristics — receives legal protection under copyright law, thereby shielding that persona against unauthorized uses and deepfakes. The Copyright Act also protects the reproduction of the voice and image of a performing artist when associated with his or her performance.²²

Although the protection of the personality attributes and identity of a natural person — as well as civil liability for their unauthorized use — are provided for under the Civil Code, the LGPD, the Sports Act, and also through the possibilities of trademark protection and copyright protection in specific cases, thereby constituting a first layer of defense for identity in the commercial exploitation of such assets, these instruments, taken in isolation, are insufficient to prevent the extraction and reproduction of such characteristics through artificial intelligence. Individualized elements — such as voice, gestures, or a characteristic manner of walking — even when protected in certain contexts, can be easily captured, combined, and used technologically without there necessarily being a direct violation of traditional legal norms, which reveals protection gaps and justifies reflection on complementary legal solutions.

In this regard, the submission of Bill No. 3,236/2024, currently pending before the Chamber of Deputies,²³ has been identified. This bill addresses the protection of athletes' intellectual property rights, regulating the registration and exploitation of sports movements, personal marks, the commercial use of athletes' images, and the use of artificial intelligence in the sports context. Among other provisions, the bill proposes that unprecedented sports movements be registrable as protected creations, conferring upon the athlete exclusive rights over the use and commercial exploitation of the movement. The bill provides that the registration of sports movements shall be carried out with BPTO, pursuant to specific regulations to be established by an act of the Executive Branch. Furthermore, the bill suggests that name, sports nickname, image, voice, and any other symbol or distinctive expression associated with the athlete shall constitute a personal mark, registrable as a trademark under applicable legislation. Finally, the bill proposes that the use of artificial intelligence technologies to replicate, simulate, or create sports movements, images, voices, or any other personal characteristic of an athlete for commercial purposes or for public dissemination requires prior authorization from the athlete or his or her legal representatives. The text of Bill No. 3,236/2024 was approved in June 2025 by the Committee on Science, Technology, and Innovation of the Chamber of Deputies, in the form of a substitute text that chose to remove from the original text all provisions referring to the unauthorized use of an athlete's identity elements by AI technologies.²⁴

The bill²⁵ mentioned above, although limited to athlete, highlights the existence of gaps in the legal protection of identity elements — particularly those of well-known, publicly recognized persons and of those who have a reputation or professional image — against unauthorized third-party use for commercial purposes, especially through technological reproduction and manipulation, as in the case of deepfakes.

In this regard, it is considered necessary to undertake more in-depth studies on the subject, so that proposals may be put forward that offer effective solutions to this problem. As discussed above, there is scope for BPTO to examine ways of enabling more comprehensive protection of these identity elements through trademarks — whether through internal regulation or by proposing amendments to the Industrial Property Act to enable adequate protection. The study of the protection of identity elements through other forms of intellectual property rights should likewise not be dismissed, should the functionalization of these identity elements within one of the categories susceptible to protection under such rights be verified and the legal viability of such protection confirmed.

3 CONCLUSION

This article has sought to present a preliminary and exploratory analysis of the subject, identifying the problem, examining international experiences and trends, and identifying the existing national legal framework and its gaps.

In light of the foregoing, it is apparent that, although the Brazilian legal system has layers of protection — anchored in personality rights, data protection legislation, copyright law, and industrial property — these instruments prove to be fragmented, such that gaps still remain in addressing the specific challenges posed by GAI and identity attribute replication technologies, particularly with regard to the commercial exploitation of identity elements. In this scenario, the articulation between different legal regimes, combined with the development of new normative or interpretive instruments, is essential to guarantee effective protection of these rights.

In this context, with regard to the protection of identity attributes within the domain of industrial property law, the role of BPTO assumes particular relevance — both in the development of technical studies and in the formulation of regulatory proposals that would allow for the improvement of the protection of identity attributes. There is scope for the construction of innovative institutional solutions — such as the enhancement of trademark protection, the regulation of new modalities of distinctive signs, among others — always in dialogue with other regulatory spheres and in a manner that structures legally sound and operationally viable solutions for a problem that is likely to intensify as technology continues to evolve.

1^H&M, a global fashion retail group, announced plans in March 2025 to create digital twins of real models and, in July of the same year, began releasing the first images produced with these avatars in advertising campaigns. THE BUSINESS OF FASHION. H&M releases first images with AI digital twins. 3 Jul. 2025. Available here. Accessed: 17 Apr. 2026.

Another important example illustrating this situation is the recent negotiation involving influencer Khaby Lame, in which the use of his image, voice, and gestures for the creation of an artificial-intelligence-powered "digital twin" was authorized under an agreement estimated at US$ 975 million, illustrating how the technology is leading to the automated exploitation of multiple identifying attributes of a person in commercial and digital content contexts. The official press release states that Khaby Lame authorized the use of his Face ID, Voice ID, and behavioral models for the development of an AI-powered "digital twin," under the acquisition agreement of his company Step Distinctive Limited by Rich Sparkle Holdings (NASDAQ: ANPA), valued at US$ 975 million. RICH SPARKLE HOLDINGS. Rich Sparkle Holdings closes acquisition of TikTok icon Khaby Lame's core company. PR Newswire, 11 Jan. 2026. Available here. Accessed: Mar. 2026.

In this regard, see also the Dublagem Viva movement, created by Brazilian voice actors against AI-generated dubbing.

2^In early 2025, World, a cryptocurrency company founded by Sam Altman, offered payment for individuals to allow the scanning of their irises to build a biometric database, which was subsequently prohibited in Brazil by the National Data Protection Authority (ANPD — Autoridade Nacional de Proteção de Dados).

3^UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO). Name, Image, and Likeness (NIL). Washington, DC: USPTO, 2023. Video. Available here. Accessed: Mar. 2026.

4^UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO). Name, Image, and Likeness (NIL). Washington, DC: USPTO, 2023. Video. Available here. Accessed: Mar. 2026. For McConaughey's trademark registrations, see application serial numbers 97/446,073 and 97/446,076, available in the USPTO TESS database.

5^UNITED KINGDOM. UK Intellectual Property Office. Trade mark UK00004129108. Available here. Accessed: 17 Apr. 2026.

6^The Guardian. Luke Littler applies to trademark his face in bid to combat AI fakes. 20 March 2026. Available here. Accessed: Mar. 2026.

7^Chowdhury, S. (2025). A Right of Personality for the UK: A comprehensive study of its significance, rationality, and its impacts on UK celebrities. (Unpublished Doctoral thesis, City St George's, University of London). Available here. Accessed: Mar. 2026.

8^The Netherlands, following Denmark's lead, also presented a similar proposal. DutchNews. Dutch MPs want citizens to own the copyright to their faces. Available here. Accessed: Mar. 2026.

9^Karttunen, Sofia. The Danish approach to copyright and deepfakes: A model for the EU? EPRS | European Parliamentary Research Service. Brussels: European Parliament, January 2026. Available here. Accessed: Mar. 2026.

10^See the recent case of unauthorized use of the voices of Brazilian singers Luísa Sonza and Dilson Scher Neto, better known by his stage name Dilsinho, to give life to the song "Sina de Ofélia" ("Ophelia's Fate"), a song created by artificial intelligence whose creator — the person who designed the prompts — remains unknown. The song "The Fate of Ophelia," by American singer Taylor Swift, was reproduced and altered without authorization through AI. In the Brazilian AI-generated imitation, the melody of Taylor Swift's song was remixed and the lyrics translated into Portuguese. Deepfakes that convincingly replicated the voices of Luísa and Dilsinho were used to compose the vocals for "Sina de Ofélia." The AI-created song spread widely on social media and even ranked among the most played songs in Brazil. "Sina de Ofélia" was swiftly removed from Spotify and YouTube. However, dozens of versions of the song — some produced by AI and others exclusively by humans — continue to be created and made available to the public, making it increasingly difficult for the rights holders to defend the violated rights. 

11^BRAZIL. Federal Constitution of theFederative Republic of Brazil of 1988. Brasília, DF: Federal Senate, 1988 — Art. 1, III: The Federative Republic of Brazil, formed by the indissoluble union of the States, Municipalities, and the Federal District, constitutes a Democratic State under the Rule of Law and is founded upon: (...) III — the dignity of the human person; Art. 5, V: the right of reply, proportionate to the offense, as well as compensation for material, moral, or image-related damages, is guaranteed; and Art. 5, X: the privacy, private life, honor, and image of persons are inviolable, and the right to compensation for material or moral damages resulting from their violation is guaranteed.

12^TEPEDINO, Gustavo; BARBOZA, Heloísa Helena; MORAES, Maria Celina Bodin de. Código Civil Interpretado conforme a Constituição da República [Civil Code Interpreted in Accordance with the Republic's Constitution]. Rio de Janeiro: Renovar, 2007. The authors outline the 'general clause for the protection of personality,' grounded in Art. 1, III, of the 1988 Federal Constitution, holding that the list set forth in the Civil Code is merely illustrative (Enunciado [Statement] No. 274, III Jornada de Direito Civil [III Civil Law Conference], available in the Enunciados database).

13^ANDRADE, Fábio Siebeneichler de. A tutela dos direitos da personalidade no direito brasileiro em perspectiva atual [The Protection of Personality Rights in Brazilian Law from a Current Perspective]. Revista de Derecho Privado, Bogotá, vol. 24, pp. 81–111, Jan./Jun. 2013, pp. 97–100 and 111. Available here. Accessed: Mar. 2026.

14^Bill No. 2338/2023 — Provides for the ethical and responsible development, promotion, and use of artificial intelligence on the basis of the centrality of the human person. Available here. Accessed: Apr. 2026.

15^ MOTA, Mateus Scisinio. Direitos de imagem e de arena: reposicionando questões controvertidas [Image and arena rights: repositioning controversial issues]. Revista Brasileira de Direito Desportivo, São Paulo, v. 18, p. 88, July/Dec. 2010. DTR\2010\957. The author summarizes the converging doctrinal position: "Converge a doutrina em estabelecer que são os direitos da personalidade absolutos, extrapatrimoniais, intransmissíveis, imprescritíveis, impenhoráveis, necessários, inatos, vitalícios, indisponíveis e irrenunciáveis." ["Legal doctrine converges in establishing that personality rights are absolute, non-patrimonial, non-transferable, imprescriptible, exempt from attachment, necessary, innate, lifelong, non-disposable, and indefeasible."]

16^"One must acknowledge that, regardless of the original function of nicknames given to individuals — using the term nickname in its broadest sense — once a name serves as an element identifying goods in commerce and functions as an instrument for channeling clientele, it begins to play, in parallel, the role of a trademark, aligning itself with the other signs that jostle in the commercial world." IDS — Instituto Dannemann Siemsen. Comentários à Lei de Propriedade Industrial [Commentaries on the Industrial Property Act]. Rio de Janeiro: Renovar, 2013. pp. 260–261.

17^"One may therefore conclude that the right of image is an 'intangible asset,' identifiable, albeit lacking physical substance, which accounting science has already shown it is possible to quantify in terms of the attraction it exerts upon admirers, consumers, followers, devotees, etc. Even though it constitutes a strictly personal asset, a fundamental right of a private and absolute nature, it is nonetheless endowed with patrimonial and economic content and is subject to valuation (...)." RASADOR, Gilson. Direito de imagem e imposto sobre a renda [Image Rights and Income Tax]. Jota. 28 Nov. 2018. Available here. Accessed: April 2026.

18^"A name used by a person for strictly personal purposes, as noted above, is protected by personality rights and, as such, enjoys all the rights and prerogatives inherent to that legal institution. However, a name may also be used as a business name or as a trademark. When this occurs, its legal nature functions as a right of a patrimonial character, whereby it becomes an incorporeal asset — including one susceptible to forming part of a commercial establishment or goodwill — and may even constitute an industrial property right subject to the rules and limits of such rights." BARBOSA, Denis Borges; PORTO, Patricia; and NUNES BARBOSA, Pedro Marcos. Patronímico como elemento de marca [Patronymic as a Trademark Element]. 2008, p. 15. Available here. Accessed: April 2026.

19^See the document listing the topics discussed by BPTO's working group for the Revision of the Industrial Property Act (LPI).

20^Soraya Imbassahy de Mello advocates for the protection of trade dress as a non-traditional trademark. Under this approach, protecting the set of characteristics that form a person's identity through the registration of such trade dress as a non-traditional trademark would likewise require a legislative amendment. MELLO, Soraya Imbassahy de. Registro de trade dress como marca [Registration of Trade Dress as a Trademark]. Rio de Janeiro: Lumen Juris, 2024.

21^BARBOSA, Denis Borges. Do direito de propriedade intelectual das celebridades [On the Intellectual Property Rights of Celebrities]. PIDCC — Propriedade Intelectual, Direito Contemporâneo e Constituição [Intellectual Property, Contemporary Law, and Constitution], Aracaju, Year I, No. 01, pp. 1–99, Oct./Dec. 2012. Available here. Accessed: Mar. 2026.

22^Law No. 9,610/1998 — Article 90, § 2: Protection afforded to performing artists extends to the reproduction of voice and image when associated with their performances.

23^Bill No. 3236/2024. Available here. Accessed: Mar. 2026.

24^The justification for the exclusion was that the Committee considered Bill No. 2,338/2023 to already set forth a comprehensive regulatory framework for AI, including the matter of intellectual property rights; accordingly, the discussion concerning the use of AI should be confined to Bill No. 2,338/2023.

25^The reference to Bill No. 3,236/2024 is made solely to illustrate the need for more in-depth studies and reflections on the issue raised in this article, without taking any position on the bill itself, given the need for a more thorough analysis of the proposal.