[Guest post] Digital replicas of the dead: a growing trend, a missing legal framework

The IPKat has received and is pleased to host the following guest post by Katfriend Marilena Kanatá (PhD Researcher at Universidad Carlos III de Madrid) discussing the increasingly topical issue of digital replicas, with a focus on deceased persons. Here’s what she writes:

Digital replicas of the dead: a growing trend, a missing legal framework

by Marilena Kanatá

A Kat-carol - The ghost of Kats past

Generative AI has transformed how stories are told, performances crafted, and memories reinvented. Increasingly, these stories are told by personalities—typically celebrities during their lifetime—who are no longer alive. They can narrate documentaries, sing “live”, or even advertise products.

Of course, bringing deceased artists back to life is nothing new. Computer-generated imagery made it possible years ago—Tupac Shakur’s holographic appearance at Coachella in 2012 and Paul Walker’s return in Fast & Furious 7 are notable examples. The difference is that Generative AI achieves this at a fraction of the cost and effort once required of major studios.

The legal vacuum: Europe’s legal protection (and its limits)

These synthetic performances are commonly referred to as “digital replicas,” a term popularised by the U.S. Copyright Office in its July 2024 report to describe video, image, or audio recordings that are digitally created or manipulated to depict a person in a realistic—but false—form. Another frequently used term is “deepfake,” although this is usually associated with deception or malicious uses, which is not always the case when it comes to posthumous performances.

The growing trend of digitally reviving deceased figures raises questions that existing legal frameworks seem not being able to fully address. To be fair, post-mortem image rights have long been ambiguous, but the gaps are now more visible.

During life, using someone’s image or voice typically requires their explicit consent. Of course, this varies by jurisdiction and context, but broadly speaking, it is the accepted legal standard. But matters become far more complex when the individual is no longer alive.

To this complexity, we must add the lack of harmonisation across civil law jurisdictions. Many European countries do recognise image rights, but only in a personal and non-commercial sense. Take Spain, for instance: under Organic Law 1/1982, image rights are personal and expire upon death. Article 4 allows the person designated in the will—or, in their absence, close relatives or the State—to take legal action, but only when the dignity or memory of the deceased is at risk. There is no legal basis to authorise or prevent the commercial use of the deceased’s likeness.

This position was confirmed by the Supreme Court of Spain in 2016 (STS 2781/2016) in a case involving the Dalí Foundation. The Court found that the Foundation lacked standing to act on behalf of the late artist since it was not designated as such in the will and concluded that its claims were purely economic in nature—and therefore fell outside the scope of protection under Organic Law 1/1982.

In other words: if the use is respectful but profitable, Spanish law has nothing to say. Picture a hyper-real Brad Pitt selling you a car—perfectly polished, perfectly legal, as long as it’s not insulting.

The American contrast: A patrimonial, transferable right

Across the Atlantic, the picture looks very different: many U.S. states recognise post-mortem rights as an extension of publicity rights—though with variations. These rights are typically transferable, inheritable, and enforceable by heirs or designated representatives. In practice, they allow the estate to control and profit from the commercial use of a deceased person’s image.

Some states have gone further by directly regulating digital replicas. California, for example, amended its Civil Code through A.B. 1836, effective January 2025, to explicitly include them within the scope of post-mortem publicity rights. The law prohibits their unauthorised use in audiovisual works or sound recordings without the consent of the estate—unless the use falls within specific exceptions such as parody.

New York took a slightly different approach with Section 50-f of its Civil Rights Law, creating a dedicated post-mortem publicity rights regime. It includes explicit safeguards against unauthorised digital replicas: if a synthetic performance is so realistic that it could mislead the public into believing the deceased actually took part, the use is only lawful if it is expressly authorised or accompanied by a clear and conspicuous disclaimer.

Time to rethink post-mortem identity?

In civil law jurisdictions, the moral nature of post-mortem protection offers few tools for managing identity in contexts where no clear offence is caused, yet economic value is still at stake. In the U.S., by contrast, the recognition of post-mortem rights at the level of some states offers more control, though the lack of federal harmonisation creates uncertainty— all while generating substantial profits from the deceased.

This raises relevant questions: Should we treat digital identity as a personal right that ends with death, or as a commercial asset that can be transferred or licensed like copyright or trade marks? Can the law accommodate the tension between technological “expression” and personal legacy? By then, should we rethink contracts during a person’s lifetime to anticipate these issues?

The rise of resurrecting the deceased through Generative AI forces us to confront these questions now, not in some speculative future. Because if technology can bring an artist back to the screen with astonishing realism, shouldn’t the law be clear on who gets to say yes — or no and at what cost and for whose benefit?