Right of Publicity

Young v. NeoCortext: When a Face-Swap App Meets California's Right of Publicity

The Ninth Circuit let a Big Brother contestant's putative class action over the Reface deepfake app proceed, rejecting both a copyright-preemption defense and a transformative-use shield at the pleading stage.

March 10, 2025
A smartphone displaying a face-swapping app interface against a dark background
The Reface app lets users insert their faces into clips of celebrities and public figures — and, the plaintiff alleges, sells subscriptions off their likenesses. Shutterstock
Educational content, not legal advice. This article explains general legal concepts. It does not create an attorney–client relationship. For your specific situation, consult a licensed attorney.

This is a litigation post, not a legislation post: it concerns a live lawsuit and a federal appellate ruling, not a statute. In Young v. NeoCortext, Inc., No. 2:23-cv-02496 (C.D. Cal., filed Apr. 3, 2023), Kyland Young — the runner-up of CBS’s Big Brother season 23 — sued the maker of the AI face-swapping application Reface for using his image, and the images of thousands of other recognizable people, to sell paid subscriptions without consent. The district court refused to dismiss the case, and on December 5, 2024, the U.S. Court of Appeals for the Ninth Circuit affirmed in a memorandum disposition, Young v. NeoCortext, Inc., No. 23-55772 (9th Cir. Dec. 5, 2024). For a generative-AI consumer app, the decision is a warning: a tool that markets recognizable people as content can be liable under California’s right-of-publicity statute, and neither copyright preemption nor a reflexive “it’s transformative” defense will end the case at the threshold.

At a glance

  • Case: Young v. NeoCortext, Inc., No. 2:23-cv-02496 (C.D. Cal.); appeal No. 23-55772 (9th Cir.)
  • District court: Judge Wesley L. Hsu denied NeoCortext’s motion to dismiss and anti-SLAPP motion to strike; opinion published at 690 F. Supp. 3d 1091 (C.D. Cal. 2023)
  • Appeal: Ninth Circuit memorandum disposition affirming, filed December 5, 2024
  • Claim: California’s statutory right of publicity, Cal. Civ. Code § 3344, pleaded as a putative class action
  • Product: Reface, an AI face-swap app that lets users insert their own faces into clips and stills of celebrities and public figures
  • Status: Remanded for further proceedings; the merits and class certification remain open

How the dispute arose

NeoCortext distributes Reface, an application that uses generative face-swapping to splice a user’s face into short clips and images drawn from movies, television, music videos, and viral media. Young’s complaint alleges the app maintains a searchable catalog of recognizable people — actors, musicians, athletes, and reality-television figures — and that users can find a specific person and produce a customized deepfake. The business model, the complaint says, depends on the appeal of those identities: free users see watermarks and ads, while paying subscribers unlock the full experience. Young alleges his likeness sits in that catalog and was used to drive subscription revenue without his permission or compensation.

That framing is doctrinally important. California Civil Code § 3344 imposes liability on anyone who “knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling,” without consent. The statute requires a “knowing” use and a “direct connection” between the use and a commercial purpose. Young’s theory is that NeoCortext’s curation of a searchable, monetized library of identifiable people supplies both.

NeoCortext’s lead defense was that the federal Copyright Act preempts Young’s claim. The argument runs that the source clips are copyrighted audiovisual works, that any right-of-publicity claim “equivalent” to rights in those works is preempted under 17 U.S.C. § 301, and that letting a state publicity claim attach to the use of a copyrighted clip would let plaintiffs end-run the Copyright Act.

Both courts rejected that. The Ninth Circuit held the claim was not preempted because it targeted NeoCortext’s use of Young’s likeness as an advertisement for Reface — to promote and sell the app — rather than a claim over a “work of authorship” fixed in a tangible medium. That is the familiar line the Ninth Circuit drew years ago in the Downing and Maloney cases: a person’s persona is not itself a work of authorship, so a publicity claim aimed at the commercial exploitation of identity is not “equivalent” to copyright. The use-as-advertisement framing matters because it sidesteps the harder question of whether a publicity claim attached to the content of a copyrighted clip would survive — the court did not need to reach that, because the gravamen here was the sale of the app.

Transformative use and the First Amendment, unresolved at the pleadings

NeoCortext also invoked the transformative-use defense — the First Amendment doctrine, derived from Comedy III Productions v. Saderup, that protects expression which adds significant creative elements transforming a celebrity’s likeness into something more than a literal depiction. NeoCortext argued that a face-swap, by definition, combines the user’s face with the source figure and is therefore transformative as a matter of law.

The Ninth Circuit was unpersuaded — at this stage. It held that NeoCortext “failed to prove that the new images combining users’ faces with Young’s photographs were sufficiently altered to be protected by the First Amendment as a matter of law.” The phrase “as a matter of law” is doing the work. The court did not hold that face-swaps can never be transformative; it held that whether a particular output is transformative is a fact-laden question unsuited to resolution on a motion to dismiss or an anti-SLAPP motion at the pleading stage. The output still depends on, and prominently features, the recognized person; the creative contribution is the user’s substituted face, and whether that is “enough” cannot be decided on the pleadings.

The court also accepted that Young plausibly alleged the “knowing use” element: NeoCortext made its library searchable by individual and included clips and images of Young, supporting an inference that the company knew it was trafficking in his identity rather than incidentally sweeping it up.

Open questions

The memorandum decides procedure, not the merits. Several questions remain genuinely open. First, will the transformative-use defense succeed on a fuller record? A summary-judgment motion with expert evidence about how outputs are generated and perceived could still carry the day for NeoCortext on some or all uses. Second, can the case be certified as a class? The publicity claims of thousands of distinct people raise individualized questions of recognizability, consent, and damages that may resist common treatment. Third, how far does the “use-as-advertisement” theory reach — does it cover only the marketing of the app, or also the user-generated outputs themselves? Fourth, the case predates and runs parallel to California’s new digital-replica statutes (AB 1836 and AB 2602); future plaintiffs may pair § 3344 with those laws, and courts will have to harmonize them. Finally, NeoCortext is a foreign company, raising practical questions of jurisdiction, collection, and enforcement that could shape any judgment’s real-world value.

Implications

  • For AI app developers: Curating recognizable people into a searchable, monetized catalog is high-risk. The “knowing use” element is easy to plead when the product is designed to find and deploy specific identities.
  • For the transformative-use defense: It survives, but it is no longer a pleading-stage escape hatch in the Ninth Circuit. Face-swapping is not transformative “as a matter of law”; defendants must build an evidentiary record.
  • For preemption strategy: Framing a publicity claim around advertising and the sale of a product, rather than the content of a copyrighted clip, is an effective route around § 301 preemption in the Ninth Circuit.
  • For rightsholders and talent: California’s § 3344 already reaches AI deepfake products today — no new statute was needed to get this case to discovery. The newer digital-replica laws layer on top of, rather than replace, this baseline.

Frequently asked questions

Did the court rule that Reface is illegal? No. It ruled only that Young’s lawsuit can proceed. The court rejected NeoCortext’s attempts to end the case early; it did not decide whether the app actually violates the right of publicity. That will be litigated on the merits.

Why couldn’t NeoCortext win on the “transformative use” defense? Because whether a face-swap output is sufficiently transformative is a factual question. The Ninth Circuit held NeoCortext had not shown the outputs were transformative “as a matter of law” — meaning the defense could not be resolved on the pleadings, not that it can never succeed.

Is this a class action yet? It is a putative class action — pleaded on behalf of a proposed class but not yet certified. Whether the court will certify a class of the many people allegedly in Reface’s catalog remains an open and contested question.

Authorities and sources