May 2026 brought many highly agitated reports in response to a recently-filed litigation against James Cameron by an actress claiming she is owed damages for use of her likeness in Cameron’s largely animated movie “Avatar.”  The case ignited controversy because the animated character in question bears a striking resemblance to Ms. Kilcher, the plaintiff actress.  Her claim therefore triggered those in the creative industries who are facing a recurring issue from use of generative AI.  Creative services agencies’ clients are asking them to use genAI to generate human likenesses (e.g. in an AI generated video), but bluntly, there are only so many ways a human face can appear.  As a result, there are increasingly high chances that a computer may generate an excellent lookalike of an existing actor purely by coincidence.  And proving that the similarity of the two faces is just coincidence – not the result of deliberate use of a desired actor’s likeness without their permission – could be difficult to prove.

However, this dispute may not justify Hollywood executives' and agents' fear of facing lawsuits from any actor who looks like a computer-generated animated character.  First, the lawsuit in question has highly unusual facts.  According to the filing, the actress in question first met Cameron in-person at a charity even in 2010, when Ms. Kilcher was just 19.  Cameron allegedly invited her to his office to collect a “surprise gift,” and she visited Cameron’s office soon thereafter with her mother.  There, an assistant showed her the film “Avatar,” and gave her a piece of art with a note that Kilcher alleges is “an original one-off sketch of Avatar’s character Neytiri drawn and signed by James Cameron.”  The note reads: “Your beauty was my early inspiration for Neytiri. Too bad you were shooting another movie. Next time.”  That sort of evidence makes it hard to argue the similarity in appearances is just coincidence.

Second, the use of a person’s name, image and likeness may implicate union rules applicable to producers who have signed Hollywood union’s collective bargaining agreements, or might violate one of the recently enacted state statutes prohibiting use of “digital replicas.”  But in general, use of a real person’s name, image and likeness is permissible unless it appears in an advertisement, or is otherwise defamatory of a real person.  Use of a known person’s identity in fan fiction or in a fictitious historical novel, for example, is generally permissible.

Nevertheless, advertising agencies and other producers of advertisements must pay close heed to how AI-generated personas came to be created and used.  If the advertisement implies an endorsement by a real person without their consent, then there will be legal liability.  And producers of fiction must be alert to how the digital replica came to be created.  If an AI-generated animated figure bears too close a likeness to an actor who was being considered for inclusion in the production, or if the animated figure constitutes a digital replica of a real person, legal liability may exist.