Digital Resurrection: No Simple Legal Script

AI-enabled re-creations of deceased actors in movies are one of intellectual property’s unsettled boundaries

In recent years, advances in artificial intelli gence and visual effects have made it possible to convincingly re-create the likeness, voice and even mannerisms of actors who are no longer living. From brief appearances to fully realized performances, “digital resurrection” has moved from novelty to viable production tool.

For studios, the appeal is clear: Beloved performers can return to the screen, extending franchises and drawing on audience nostal gia. However, when an actor’s estate has not expressly authorized such use, are studios oper ating within the law—or exploiting gaps that the law has yet to close?

As of now, the answer is neither straightfor ward nor uniform.

A patchwork of rights

Unlike copyright, which protects original works of authorship, the use of a person’s like ness is governed by the right of publicity. This is a state-based doctrine that protects against unauthorized commercial exploitation of an individual’s name, image or persona. In juris dictions such as California, this right can extend beyond death, allowing estates to control and license a deceased actor’s likeness.

However, not all states recognize postmor tem publicity rights, and those that do vary in scope and duration. Some states provide decades of protection; others offer limited or no postmortem rights.

This inconsistency creates a patchwork in which legality of a digital performance may depend on where a claim is brought.

For studios, this fragmentation creates both opportunity and uncertainty.

Contractual silence’s gap

Compounding the issue is the fact that many actors’ contracts predate the emergence of AI-driven performance replication. Historically, agreements addressed the use of recorded performances, residuals and limited forms of reuse but rarely contemplated the creation of entirely new performances synthesized from existing material.

As a result, estates may find themselves with out explicit contractual authority to approve or prohibit such uses. Studios, in turn, may argue  that existing rights, such as ownership of under lying footage or broad licensing provisions, permit certain forms of digital manipulation. Whether those arguments succeed depends on contract interpretation, which can vary widely based on the language at issue and the govern ing law.

This contractual silence has become a focal point of industry debate.

From one perspective, it reflects a gap that studios may exploit; from another, it under scores the need for clearer drafting in future agreements rather than retroactive restrictions on existing rights.

Expressive or exploitative?

The notion that studios are “getting away with” intellectual property violations assumes that such uses clearly fall within established prohi bitions. In reality, the legal framework is still evolving, and many uses occupy a gray area rather than a zone of clear infringement.

Where an estate holds enforceable publicity rights and has not consented, unauthorized use of a deceased actor’s likeness could give rise to liability. Courts have, in various contexts, recog nized that digital replicas can implicate the same interests as traditional likeness rights. However, studios may rely on alternative legal theories, including First Amendment defenses, where no such rights exist or where they are ambiguous.

Expressive works such as films often receive heightened protection under free speech prin ciples. Courts have sometimes applied balancing tests to determine whether a use is sufficiently transformative to warrant protection, even when it incorporates elements of a person’s identity.

A digitally recreated performance in a narra tive film may, under certain circumstances, be characterized as part of an expressive work rather than a purely commercial exploitation.

This tension between publicity rights and free expression further complicates the anal ysis. What one party views as unauthorized appropriation, another may frame as protected artistic expression.

Not all states recognize postmortem publicity rights, and many actors’ contracts predate AI-driven performance replication.

Ethical considerations

Even when legal risk is limited, the use of deceased actors raises ethical concerns. Audiences may question whether performances align with the actor’s wishes, while industry professionals are concerned about the broader implications for living performers.

Labor organizations in the film and televi sion industry have addressed the use of digital replicas, including provisions aimed at ensur ing consent and compensation for actors whose likenesses are reproduced using AI. Although these agreements primarily protect living performers, they signal a growing recognition that existing frameworks may be inadequate to address emerging technologies.

Legal clarity needed

Given the current landscape, calls for legislative action are gaining traction.

One proposal is the creation of a federal right of publicity to establish uniform standards, including clear postmortem protections. Such a statute could reduce jurisdictional inconsis tencies and provide greater predictability for both estates and studios.

Another potential avenue is the development of statutory provisions specifically addressing digital replicas. These could define the circum stances under which AI-generated performances are permissible, establish consent requirements and clarify the relationship between contractual rights and postmortem interests.

Critics of new legislation caution that overly rigid rules could stifle creative expression.

Film has long relied on techniques such as archival footage, impersonation and visual Film has long relied on techniques such as archival footage, impersonation and visual replication may prove challenging, particu larly as technology continues to evolve.

A more incremental approach might focus on enhancing disclosure and consent mechanisms, rather than imposing categorical prohibi tions. This model would prioritize consumer awareness while preserving creative flexibility.

An evolving balance

The use of AI to re-create deceased actors sits at the intersection of intellectual property, contract law and emerging technology. It highlights gaps in current frameworks while reflecting competing interests: estates’ economic rights, filmmakers’ creative freedom and audience expectations.

At present, studios are not uniformly “getting away with” violations, nor are they operating within a fully settled legal regime. Instead, they are navigating a landscape characterized by ambiguity, where risk is managed as much through negotiation and litigation.

As digital resurrection becomes more commonplace, the law will likely continue to evolve in response. Whether that evolution takes the form of new legislation, judicial interpreta tion or industry standards remains to be seen.

What is clear is that the question is no longer hypothetical. The technology exists, the incentives are strong—and the law is still catching up.

Originally published by Inventors Digest.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.