By Amani Patel (Senior Associate) at Spoor & Fisher  

Artificial intelligence (AI) is reshaping the influencer economy and not always in predictable ways.

AI tools can now replicate a person’s face, voice, and manner of speaking with remarkable accuracy. With only seconds of source material, software can generate content that appears to show a real influencer endorsing a product.

For South African businesses that heavily rely on influencer marketing, this is no longer theoretical. It presents a growing commercial and legal risk.

Influencers build value around personality. Their voice, humour, appearance, and tone form the core of their product. However, advances in AI now make it possible to create digital imitations, including:

• Artificial brand endorsements
• Fake promotional videos
• Voice clones for advertising
• AI-generated “versions” of real creators.

Globally, fabricated videos have already begun to surface showing influencers promoting products. For example, scammers have used AI-generated deepfake videos of a well-known creators to promote fraudulent schemes across social media platforms.

The legal question therefore arises: who owns a digital likeness?

Ownership of a digital likeness – being an AI-generated replica of a person’s appearance, voice, or mannerisms – is legally complex. This is because it engages multiple areas of law, a few of which are discussed below, none of which were designed for AI.

• Personality rights: South African common law recognises and protects an individual’s identity (image, voice) and dignity. The unauthorised use of an AI-generated likeness may infringe these rights, even where no copyrighted material has been copied.

• Privacy rights: the unauthorised use of a digital likeness may also violate privacy law, especially if it misleads audiences or exposes the individual to unwanted attention.

• Intellectual property: copyright protects identifiable works rather than a person’s likeness as such. While trade marks may afford limited protection if the likeness is associated with goods or services, but this is uncommon.

• Contractual protection: influencer and endorsement agreements can provide the most immediate safeguards by regulating AI use, requiring prior approvals, and clearly defining the scope of permitted likeness exploitation.

Courts may, however, struggle to apply existing legal frameworks to AI-generated content. Enforcement is often costly and uncertain, underscoring the importance of proactive risk management through contractual controls, monitoring and trade mark strategies.

Is this a copyright problem? Not necessarily. Copyright protection attaches to specific works, such as a particular photograph or video. If someone copies and reposts an existing video, that is likely copyright infringement.

By contrast, where AI generates a new video that merely resembles a person without copying a specific work, copyright law may not apply.

The Exposure for Brands

Brands are not immune. If a company engages with, republishes, or benefits from AI-generated content that imitates a real individual, it may face:

• Reputational damage
• Claims of misrepresentation
• Potential regulatory scrutiny for misleading advertising.

As AI-generated content becomes increasingly difficult to detect, commercial exposure grows. For businesses, reputational fallout can be more damaging than any court claim.

Why this matters in South Africa

South Africa’s creator economy is expanding rapidly with influencer marketing now firmly established as a mainstream advertising channel. Yet contractual and compliance frameworks have not fully adapted to AI-driven risks.

Practical steps for businesses and creators include:

• Including clear AI-use restrictions in influencer agreements
• Requiring warranties, confirming content authenticity
• Monitoring for digital impersonation
• Registering trade marks for brand names and distinctive catchphrases
• Treating digital identity as a commercial asset and managing it proactively.

Traditionally, intellectual property law focused on inventions, artistic works and trade marks. AI introduces a broader question: should a digital identity itself receive standalone legal protection?

In the digital economy, identity is currency, and AI has made it replicable at scale. For South African businesses and creators, digital identity is no longer just a marketing asset, it is an intellectual property risk that demands proactive management.