“Thriller” or Killer? The Post-Mortem Right of Publicity in the Age of AI

By: Elizabeth abreu

INTRODUCTION

The idea that living people, particularly famous people, should have control over commercial uses of their name, image, and likeness (“NIL”) is widely accepted. Over half of the states in the U.S. have the right of publicity written explicitly in a statute or common law. However, a quarter of those states do not have a statute that extends postmortem. In states that have right of publicity protections that extend postmortem, these protections vary greatly in who they actually protect, what one must do to gain protection, and how long that protection lasts. As Artificial Intelligence becomes increasingly sophisticated and realistic, the lack of uniform protections for an estate’s control over a deceased’s NIL creates a quite problematic situation for all parties involved, especially those inheriting estates of the famous. The estates of dead celebrities (otherwise referred to as “delebs”) can be worth tens to hundreds of millions of dollars due to their continued ownership of intellectual property, like famed music catalogs, and their ability to license publicity rights. For example, Michael Jackson’s estate earned $115 million in 2023 from both “MJ: The Musical” and Cirque du Soleil’s “Michael Jackson ONE” in Las Vegas.

The entertainment industry loves to use content they know already has a great success rate with audiences due to the monetary risk associated with producing big-budget content. AI’s ever-evolving ability to create hauntingly realistic works combined with the entertainment industry’s content recycling tendencies creates the heightened possibility of enhanced demand for access to the publicity rights of dead celebrities. Deepfakes, which are videos wherein a person’s face or body is digitally manipulated to resemble someone else, are becoming more prevalent due to advancements in AI technology and machine learning. These deepfakes can replicate a person’s voice, image, or both. While the living can challenge the authenticity of a deepfake depicting them, the deceased cannot dispute their portrayal or the usage of their NIL in a work. This posits considerations for how to best regulate this type of technology in a uniform and effective way.

There exists a theory that posthumous rights are enshrined at times when technology creates a need for their codification. For example, some posit that the right of publicity was initially conceived because of the invention of radio and television in the 1950s and led to the legislation of the posthumous right in the 1970s. If technology is considered a driving force of posthumous rights granted in the law, the intense surge of AI content should lead to alterations in the laws concerning the right of publicity and the advancements in AI technology. A way to uniformly protect against concerns involving AI’s ability to create hauntingly realistic deepfakes is through federal governance over the right of publicity. This note contends that the establishment of a consistent legal framework governing posthumous publicity rights is essential to ensure their efficient and effective management.

THE RIGHT OF PUBLICITY: EXAMINING THE ECONOMIC LANDSCAPE OF DECEASED CELEBRITIES’ IDENTITIES

Within the legal community, there has been ongoing discourse surrounding the necessity of a federal right of publicity law, with legal scholars landing on different sides of the issue.  Before exploring what a federal right of publicity may look like, one must first delve into the background of the right of publicity. Evolving from the common law and statutory privacy torts,  the right of publicity is essentially the right of a person to protect their economic interests in the commercialization of their NIL. It is a right often grouped with IP rights. The seminal and only Supreme Court case addressing the right of publicity, Zacchini v. Scripps-Howard Broadcasting, stated the right was akin to copyright and patent law because it places attention “on the right of the individual to reap the reward of his endeavors” and does not concern the more emotional aspects of unconsented use of personal attributes. Further, the goal of the right of publicity is aligned with trademark law because both are meant to protect against consumer confusion. Claims of infringement under both the Lanham Act and state right of publicity laws must balance the right of free expression granted under the First Amendment and interest in protecting the public from false endorsements. 

This right has been expanded in some states, like California, through common law to include other celebrity features that may conjure up a recognizable identity. In some states, if a viewer or consumer can identify characteristics of a particular individual in an advertisement and link it to that individual, without the individual actually endorsing the company, it may constitute right of publicity infringement. For example, in many states, a commercial likely could not feature a basketball player with the number twenty-three on their jersey while using an actor who very closely resembled Michael Jordan, or even had a silhouette that looked similar to Michael Jordan. Such a commercial would insinuate that Michael Jordan endorsed that product, which would likely be a violation of Michael Jordan’s right of publicity. Similarly, even a voice that conjures up the identity of a celebrity could be a violation. In the infamous Midler v. Ford case, the Ninth Circuit found that the usage of a Bette Midler voice impersonator for a Ford commercial was a violation of Midler’s right of publicity. 

Since the right of publicity is considered a property right, it is descendible to family members or others as specified by the deceased. The goal of this right is to protect the person from economic harm. This differs from the right of publicity’s predecessor, the right of privacy, where the goal is to prevent emotional distress from the unauthorized use of personal attributes and is usually not descendible. Emotional distress is a difficult injury to prove because it is “invisible, subjective, and often intertwined with personal experiences and vulnerabilities.” Economic damage, on the other hand, is easier to prove, especially when the damage award for right of publicity cases ends up being the amount the company would have paid for a license to the NIL. Further, the right of publicity is descendible because it protects a person’s money or other tangible economic goods that can pass through to heirs. Contrastingly, the right of privacy protects personal emotional distress, which cannot necessarily be passed to another person in the way goods are. Many states still conflate the right of publicity and the right of privacy, which is one of the many reasons there is a need for a federal right of publicity to clear up the confusion between the two ideas and ensure they serve their intended purposes as separate legal doctrines.

The Current State of Right of Publicity Laws

Each state with a postmortem right of publicity has varying laws and requirements surrounding how to access these rights. Therefore, aspects of right of publicity laws such as how the right is transferred, how long the right lasts, and how the right is maintained varies depending on the state. Many states, California included, only have postmortem right of publicity protections for celebrities or people who have some sort of commercial value associated with their identity. This section will outline the general attributes of the postmortem right of publicity laws and some of the standout differences among these state laws. 

Before the courts can settle a right of publicity case as applied to a deceased person, they must first determine which state’s laws apply. This depends on where a person is domiciled or resides when they die, and the choice of law principles of that state of domicile. Often, domicile can be simple to determine, but celebrities tend to live more fluid lives than the average person, which complicates this determination. Factors used to determine domicile include “length of residence, place of worship, voting registration, automobile registration, club memberships, location of children's schools, location of bank accounts, location of business dealings, and where tax returns are filed.” Certain factors may lean in conflicting directions, which further muddles the analysis. 

Further, the court has discretion to choose which law applies and considers factors such as:

“…the law of the person’s domicile, the law of the defendant’s domicile, the law of the plaintiff’s domicile (in the case of plaintiffs asserting rights derived from deceased personalities or persons who are assignees or licensee of another party’s right of publicity), the law of the forum, or the law of the place where the infringement occurred.”

The fact that numerous factors play into this first step of determining whether or not a right exists and which aspects of the right of publicity apply lends itself to the idea that there should be a federal right of publicity. If determining domicile is difficult or unclear, an individual’s heirs won’t know whether they have a right of publicity until determined by the court. The creation of a federal right would instill a standard across the board for how these cases should be handled to ensure both the efficiency of the legal process and that the right protections are in place. 

States also take into consideration when the person died in relation to when the right of publicity statute took effect to determine whether an individual gets protections under the state’s right of publicity statute. Certain states are retroactive, in that they apply to individuals who died while domiciled in that state, while others set a date after which the statute applies upon death. This may be the date the statute was enacted, or may be an arbitrary date chosen by lawmakers. Therefore, these dates vary wildly, with the Texas statute applying to anyone who died on or after January 1, 1937, the California statute applying to anyone regardless of date, and the New York statute applying to those who died after the postmortem part of the statute was enacted.  

This split between states concerning when their right of publicity laws apply based on their creation and when they begin to take effect in the statute has created contentious issues in the estate planning of famous individuals, one the most famous instances being the estate of Marilyn Monroe. When Marilyn Monroe died in 1962, she could have been considered domiciled in either New York or California because she had residences in both states. Her estate chose New York as her domicle to avoid paying the high estate taxes in California. Unfortunately, at that time New York did not have any postmortem right of publicity rights and New York does not recognize retroactive rights in their statute, meaning that Marilyn Monroe’s estate could not control the commercialization of her image. This lead to a legal battle throughout the Ninth Circuit, which ended in the judge deciding that New York law must be applied, resulting in no postmortem right of publicity for Monroe or her estate. This resonates well with Monroe’s infamous quote, “I knew I belonged to the Public and to the world, not because I was talented or even beautiful but because I had never belonged to anything or anyone else.” While some celebrities may embrace that their rights belong to the public, especially long after they are gone, others may not. Whether these celebrities’ rights belong to the public or are passed down to loved ones may be based on something as arbitrary as which domicile was better for tax purposes. A federal right of publicity would better ensure that those who did want their rights protected could do so. 

The process of determining who exactly has rights to an estate once a person has died and what those rights are can last for years in probate court. In the meantime, it is unclear who is meant to have the necessary control over the estate to give consent to utilize NIL of the deceased long-term, and who benefits from that commercialization financially. Likely, the executor or administrator of the will would be responsible for monitoring any licensing deals or potential infringement claims. California Probate Code § 9820 states that the personal representative “may … commence and maintain actions and proceedings for the benefit of the estate.”  The key word is “may,” because that means the representative can, but is not necessarily required to bring any infringement claims on behalf of the estate. The personal representative of the estate often does not have the time or knowledge to bring any claims and, therefore, those with valuable IP should contemplate the option of utilizing a creative rights executor. A creative rights executor is a special type of executor that specializes in managing the IP rights of an estate to ensure proper control and enforcement of those rights. 

The difficulty surrounding determining how to properly transfer the right of publicity further necessitates the need for standardization of how these rights can be transferred, with or without a will. California’s right of publicity statute provides a clear model for a federal law concerning the transfer of right of publicity, especially regarding the wishes of the deceased as memorialized in a will. If a right of publicity can be transferred, some states, like New York and California, require that the postmortem rights holder files a registration of those rights with the state to be able to pursue a legal claim or recover damages. Other states have determined that for there to be a transferable right of publicity, the deceased must have utilized those rights themself before death. Further, some states require that the identity of the deceased be continuously commercially exploited for the right to exist.

Postmortem rights can be transferred to heirs in a variety of ways. This includes contracts, wills, or other similar testamentary documents; state intestate succession rules if the deceased dies without a will; or a statutory mechanism found within the right of publicity laws themselves, like California’s. This can lead to further complications because different states have different laws surrounding intestate succession. Celebrities with estates worth millions of dollars often die without formal wills or any wills at all, which can lead to various complications in probate court. Celebrities that have died without any will at all include Jimi Hendrix, Amy Winehouse, and Bob Marley. After Bob Marley's untimely death, his elderly mother faced the threat of eviction from the home he had gifted her by the president of Marley's record label, amidst ongoing litigation over the estate. Jimi Hendrix’s brother, Leon, who Hendrix likely intended to inherit his estate, also faced repercussions from his brother’s lack of will. Hendrix’s father inherited the entire estate and subsequently decided to completely cut Leon out of his own will. Hendrix’s father has since died and Leon has sued the Hendrix estate multiple times, now passed on to his step-sister after his father’s death, to get his fair share. 

Another key difference in states’ right of publicity statutes is the duration of protection. Some states have not addressed the duration issue at all, and for states that have limited the duration, the duration can range from 20 to 100 years. California’s right of publicity statute protects NIL for seventy years after death, while New York’s protects right of publicity for forty years after death. One of the more interesting statutes comes out of Tennessee, where the right lasts for ten years after death, and if the heir continues to commercially exploit the right, without letting that exploitation lapse for longer than two years, the right can last forever. What are the implications of all of this variation in state law? Duration may factor into how likely the heirs of the estate are to consent to certain uses of the deceased's NIL and therefore may affect how often AI deepfakes in a commercial setting are authorized. Similar to how copyright law is structured, a uniform duration policy for how long these rights last would be crucial for a federal right of publicity law. 

If a right of publicity is infringed upon, states also have different rules concerning damages, which results in inconsistencies in award amounts dependent on the state. Some states, like New York, explicitly state that the harmed party can seek injunctive relief. When it comes to IP infringement, injunctive relief is extremely important because it allows the harmed party to discontinue the infringing use. Due to the variances in state laws, it could be difficult to issue an injunction that is effective all across the United States. If the state statute’s right of publicity laws do not have a postmortem aspect, and issuing an injunction would conflict with this fact, the injunction may not be effective in certain areas. This could be very damaging to the loved ones of the deceased and the deceased’s estate due to how widespread the reach of content is now, and unfortunately, unauthorized commercial deepfakes of deceased persons could continue due to the difference in laws.  

As per monetary damages, statutes have a variety of regulations including statutory minimums, award profits attributable if infringement is found, actual damages, and potentially even punitive damages. The statutory minimums are meant to compensate the injured party for emotional distress the unauthorized use caused, even if there did not seem to be actual damages or said damages were difficult to calculate. It would be helpful to have a similar mechanism of a minimum damage award in the federal right of publicity law, to deter people from creating deepfakes and using them for commercial purposes. Courts have discretion as to whether they can award punitive damages under the New York statute. In these cases, punitive damages are awarded. A special perk of the postmortem statutes, compared to the statutes for the living, is that the profits attributable to the use are automatically rewarded. This right exists as long as the rights holder can prove gross revenue from the use of NIL.

Digital Replicas: Navigating The Ethical Implications Of AI Clones

In 2021, New York amended its postmortem right of publicity statute to specifically address postmortem “digital rights.” These digital rights are essentially rights that authorize the use of the creation of a digital replica of a deceased person in both commercial and noncommercial instances. The law is written as such: 

The New York postmortem right of publicity statute prohibits unauthorized use of:

1. A deceased personality's protected identity aspects: on or in products, merchandise, or goods; or for advertising, selling, or soliciting purchases of products, merchandise, goods, or services.

2. A deceased performer's digital replica in a manner likely to deceive a reasonable observer into thinking the use was authorized: in a scripted audiovisual work as a fictional character; or for a musical work's live performance

Notably, the New York statute defines a personality and performer, the two categories of persons protected by the postmortem statute. A deceased personality is defined as a “person whose name, voice, signature, photograph, or likeness had value at the time of or because of the person's death” and their NIL cannot be used for commercial reasons without their consent. A deceased performer is defined as “one who, for gain or livelihood, regularly engaged in acting, singing, dancing, or playing a musical instrument” and similar protections apply as with the personality. New York statutory protections are in place to safeguard the deceased from exploitation of their NIL without fair compensation for their contributions. Allowing content creators access to a performer's likeness without payment would result in unjust enrichment for the creator. Additionally, it serves the purpose of preserving the deceased and the estate's more moral interests of not allowing a look-alike to say or do certain things without permission.

The first prong of the New York statute, regarding deceased personalities, reflects the sentiment of the living right of publicity statutes that protect against the unauthorized use of NIL for commercial purposes, preventing economic harm. The second prong, regarding deceased performers, is notable considering the delicate balance there is between publicity rights and freedom of expression when it comes to noncommercial works. Interestingly, California’s postmortem right of publicity statute has almost the opposite effect of New York’s when balancing freedom of expression and the creative value of digital replicas. 

The California statute finds that certain expressive works are not products under the statute and therefore those listed expressive works do not infringe on the right of publicity. The statute explicitly exempts “plays, books, magazines, newspapers, musical compositions, audiovisual works, radio programs, television programs, single and original works of art, works of political or newsworthy value, advertisements and commercial announcements for any” aforementioned works. These exemptions only apply if the work is “either…Fictional or nonfictional entertainment” or “ a dramatic, literary, or musical work.” These exemptions are in place to allow creatives to utilize the freedoms of the First Amendment to create works that reference famous people without having to gain their approval. Since the California statute does not have the same discussion of digital replicas as New York’s does, under California’s current right of a publicity statute law a producer of a movie could likely use a digital replica of a deceased actor, without consent from the estate, as long as it was in an expressive work for an expressive purpose. A federal right of privacy would ensure that there are protections in place that would prevent economic loss from an attempt to use a digital replica for a performance without consent. 

The second prong of New York’s statute provides that to infringe, the digital replica needs to be realistic enough that a reasonable viewer would assume it is the deceased personally. This will no doubt have implications for AI, as the current state of AI replicas is realistic enough to fool the reasonable viewer. This is exemplified by the fact that AI has become so realistic that people have been fooled by fake AI video calls replicating people they know personally. The definition of digital replica does not include a digital reproduction of the actual person’s recorded performance or another recording that is made up of noises that imitate or simulate the person’s voice.  This suggests that the purpose of part of this statute is to protect the deceased from being in a situation where a hyper-realistic AI says or does things that the person themselves did not do. A provision such as this would be extremely important to include in any federal right of publicity law meant to regulate AI. 

A provision in the law requiring users of a deceased person's NIL to obtain consent from the estate is crucial to ensure consistent protection of the deceased individual's commercial interests. There is a commercial purpose in having consent for a digital replica to perform because it is a substitute in the market for having a recording of a real performance and should be economically treated as such. In addition, the provision should require that any usage of a digital replica with consent requires a disclaimer that the digital replica is AI. The right of publicity law has emotional significance due to its origins and the nature of the damages it entails. Implementing a simultaneous disclaimer alongside a digital replica on screen could help alleviate potential emotional distress resulting from its use, regardless of whether the NIL is used for commercial purposes. 

RIGHTS FROM BEYOND THE GRAVE: POSTHUMOUS PROTECTIONS

An important policy question to consider when evaluating the postmortem right of publicity is why the law is concerned with protecting the rights of the dead over the commercialization of their image. As mentioned above, the right of publicity differs from the right to privacy in that the right to privacy is a personal right, and usually dies with the person it is attached to. If the purpose of the postmortem right of publicity is not primarily to protect the emotional interests of the deceased or their heirs, what is the primary purpose? There are competing theories as to why the right of publicity extends postmortem, two of which are the Will Theory and the Interest Theory.  Both theories can support the need for a federal, well-regulated right of publicity law in the age of AI. 

The Will Theory argues that the dead should not hold rights at all, and rights that seemingly do exist for the dead are actually meant to control the actions of the living. Applied to the right of publicity, this means that the postmortem protections serve as encouragement for those living to create an identity that can be substantially commercialized, for both themselves and their heirs. If we apply this theory to the use of AI to create deepfakes, the existence of a well-regulated postmortem right of publicity may encourage people to work harder in creating an identity that would endure the test of popularity over time and lead to a demand for NIL licensing after death. However, without robust protections in place for these personalities, individuals may not be as incentivized to create a lasting persona because they know that their image can be accurately recreated by AI without a need to compensate the heirs of that personality. 

Conversely, the Interest Theory argues the dead do have legal rights because they have an interest in certain things that permeate death, such as maintaining their reputation or ensuring that their children are taken care of. In the age of AI, famous persons and their estates can profit off of the use of their NIL after their death due to the ease of recreating their NIL with accuracy. This creates an enhanced interest in their legal rights to their publicity after death. Further, they have an interest in their loved ones profiting from the commercialization of their image that extends beyond death. With AI, deepfakes of dead celebrities are becoming more common, which means that commercialization of and licenses for the NIL of deceased celebrities will be requested more often. Not only do the heirs benefit financially from the right of publicity, but they are better positioned to know what types of commercialization the deceased would or would not consent to because of their proximity to the deceased. Therefore, it makes the most sense for the designated heirs to have control over how the deceased’s NIL is used. 

Another theory behind the right of publicity is that the deceased have an interest in how their NIL is commercialized because what a person promotes can reflect their values as well as impact their reputation and legacy. With the accuracy of AI, the incentive to protect reputation and legacy postmortem has only increased because AI can create a very realistic image of the deceased. Someone who built an incredible life for themselves would want to ensure that their hard work in creating their likeness did not go to waste after their death. For example, a celebrity who was a strict vegan would not want their NIL representing companies that create or use animal products. This theory also reflects why states may impose durational limits—the interest in protecting reputation wanes over time as the deceased’s successors also move on. 

These theories underline the value that inherently exists in a person’s NIL, even after they have passed on, and different rationales as to why there should be protections in place. Regardless of which justification one finds most compelling, it is clear that there is a strong need for these protections. The inconsistent and variable laws regarding rights of publicity across the country are inadequate to properly provide these protections. The exponential increase of the pace of AI evolution creates a need and opportunity to reform the current scattered laws surrounding the right of publicity.

PROPOSED CONGRESSIONAL SOLUTIONS TO PRESERVE PRIVACY AND EXPRESSION

Congress has introduced several bills in response to the wave of AI deepfakes, including the NO FAKES Act (“Nurture Originals, Foster Art, and Keep Entertainment Safe Act”) and the No AI FRAUD Act (“No Artificial Intelligence Fake Replicas and Unauthorized Duplicates Act”). 

The NO FAKES Act provides that people have the right to authorize a digital replica of themselves and that right extends seventy years after the death of the individual. This act sets out requirements for a license in which there must be representation by counsel or the licensing falls under a collective bargaining agreement. The act specifically excludes restrictions on usage of a digital replica used in news, public affairs, sports report, in a documentary or biographical work, or for comment, criticism, scholarship, satire or parody. This would essentially create a federal right of publicity law concerning digital replicas, but allows for the use of digital replicas in expressive works for noncommercial purposes. This law would be more protective towards dead celebrities' interests if it also required consent for a digital replica performance, like the New York right of publicity statute. 

The No AI FRAUD Act is more extensive than the NO FAKES Act, but they are fairly similar. One interesting attribute of the No AI FRAUD Act is that the right extends postmortem and can be terminated by a showing of non-use of the identity or voice for commercial reasons for two years or the death of all heirs. The act has the same license restrictions as the NO FAKES Act. The act explicitly states that it will balance First Amendment interests with the right of publicity interests and outlines factors including commerciality of the use, whether the use was crucial for the expressive aspects of the project, and whether the use competes with the rights of the rights holder. The act also provides damages for severe emotional distress, and even has a per se rule that depictions of a sexual nature are considered per se harm. The addition of the rule concerning depictions of a sexual nature helps to cover an element that right of publicity statutes may overlook. It also shows that the laws recognize both emotional harm and economic harm and reflect the goals of the origins of the right of publicity laws. A per se harm rule for digital replicas that include sexual material is important to remedy these harmful instances. The use of deepfakes for these purposes is a growing problem, as exemplified by the AI deepfake of Taylor Swift that went viral on X. 

RESURRECTING THE DEAD AND THE ETHICS OF HOLOGRAPHIC ZOMBIES 

The ease of creating accurate and realistic AI deepfakes is both exciting and frightening. A uniform right of publicity is a necessary regulation to tackle potential issues arising from these technological advancements. There are ways to promote creativity and innovation without conflicting with artistic objectives, but caution and safeguards are necessary when utilizing AI to generate images of deceased individuals. Such actions can profoundly impact a person's legacy and inflict emotional distress on their loved ones.

Proposed acts concerning digital replicas expressly allow the usage of digital replicas for expressive or public interest purposes. While there are First Amendment considerations for the usage of digital replicas in expressive works, the need for protection against this is crucial in the wake of increasingly accurate digital replicas. These new digital replicas that are indistinguishable from the real thing are very different from using previously recorded, real content. This is because the digital replica is saying and doing things that the real person never actually did, and likely never specifically consented to, or wanted to release publicly. Defamation law only protects the living as it assumes the dead do not have reputations to damage, so it cannot offer protection to deceased persons for replicas that speak or act detrimentally. 

There are quite a few gaps in how current laws apply to deepfakes. A federal right of publicity law should require that unauthorized deepfakes, for any expressive purpose that a reasonable viewer would assume is the real person and not a replica, are subject to a visible disclaimer in the opening credits. For example, proper use of a disclaimer would require an “interview” of a deceased person in a documentary utilizing a digital replica to provide a marker in the corner of the screen informing the audience of AI usage. 

When AI is employed to replicate an artist's voice for creating new music, it raises concerns about the artist's attachment to their musical catalog and their decisions regarding what to release publicly as part of their artistic portfolio. The loss of artistic input by the person whose name is represented in the artwork is an additional ethical dilemma, but the law does not prevent this from occurring. This creates a question of policy: how do we reconcile the artistic intentions of deceased artists with the freedom of expression for those who are still alive? 

Not only does this issue create ethical dilemmas, but it also polarizes audiences. On one hand, the expressive use of digital replicas can be a heartwarming tribute to a loved one who has passed on or a way to honor someone, like the AI hologram artist Kanye West made of Robert Kardashian for his wife Kim Kardashian’s birthday in 2020. On the other hand, use of digital replicas can be seen as disrespectful to the dead. “Roadrunner,” a documentary about chef Anthony Bourdain, utilized AI to generate a Bourdain-sounding recording of his writing. A heated debate ensured about whether this use was proper, and it was only three lines of the entire film—imagine audience or family member reactions to a full digital replica making statements that were never written or spoken by the real person. Robin William’s daughter, Zelda Williams, has already spoken out publicly about attempts to recreate her father’s voice using AI, stating that “these recreations are, at their very best, a poor facsimile of greater people, but at their worst, a horrendous Frankensteinian monster, cobbled together from the worst bits of everything this industry is, instead of what it should stand for.” While there are currently no ethical guidelines surrounding documentaries, there should be a sense of ethical responsibility to gain permission or at least inform the deceased’s family of the use and manner of use of the digital replica. When digital replicas are used, a disclaimer requirement would help to enforce this ethical responsibility. A federal right of publicity should require that digital replicas are denoted with a disclaimer unless the holder of the right of publicity waives that disclaimer. This would balance the interests of the heirs with the interests of those who want to utilize a famous person’s NIL. 

There are plenty of examples in recent history of AI usage to recreate aspects of a person's NIL, whether in hologram or sound recording form. An example of proper use of AI digital replicas comes out of Brazil. A commercial for Volvo featured famed Brazilian singer Elis Regina, who tragically passed away at the young age of 36, alongside her living daughter. Instead of using a complete deepfake, a body double was used, and AI was utilized to alter the body double’s facial features to match Regina. According to the Guardian, the general reception from both the family and consumers was heartfelt and appreciative. Having family members involved in the process and the product seemed to be a large contributing factor to the positive reception by everyone. This example shows how an AI deepfake for a commercial purpose can be used respectfully and tastefully, and how public reaction reflects the respectful use. 

Marilyn Monroe’s estate, one of the most contentious estates concerning right of publicity, is now being used in a very novel way. At this year’s SXSW, Soul Machines, an AI technology company, announced that they have created a Large Language Model (LLM), a “hyper real AI generator digital avatar that lets fans engage in a conversation,” of Marilyn Monroe. The AI generator gives the user realistic and personalized written or spoken feedback, and is “able to read user’s emotions and respond accordingly via Soul Machine’s proprietary camera and microphone technology.” The digital AI then uses the data gathered by camera and microphone to respond in an individualized way, “mimicking the human nervous system.” This project was done as a collaboration with Authentic Brand Groups, one of the largest brand management companies in the country, to better facilitate relationships between brands and consumers. 

Marilyn Monroe was likely chosen for this project partially due to the lack of right of publicity protections around her NIL, which stemmed from the aforementioned issues with her estate and the fact that Authentic Brand Groups owns her remaining IP rights. This usage would likely be considered a commercial use, as it is done to garner an interaction between consumers and brands. There are a lot of issues with this proposed use beyond the right of publicity, including data privacy, because of the use of cameras and microphones in conversational settings, alongside ethical concerns presented. On one hand, the proposed use may encourage parasocial, emotional relationships with an AI meant to sell something to the user. The fact that these interactions are a personalized way to get information to a consumer from a brand could invoke different Federal Trade Commission consumer protections, as the FTC has recently stated its concern about interactions between AI and consumers. Further, emotions arising from bringing a deceased “back to life” may spark strong opposition from family or descendants of the deceased. On the other hand, AI could be used in a more artistic or experimental way that does not create these concerns and is an innovative use of new technology. It also has the amazing ability to create very realistic looking and sounding replicas to remember someone and feel closer to them again. Either way, there must be protections placed on the deceased’s estates for the usage of NIL in this fashion.

AUXILIARY SOURCES OF POSTMORTEM PROTECTIONS 

A federal right of publicity statute may not be the only way to fully protect individuals from the creation of unauthorized postmortem digital replicas. Digital replicas will not be prohibited in expressive works due to the First Amendment, but both unions and contracts can make up for the inadequacies of the law in this area and enhance protection surrounding postmortem rights. 

 Members of the Screen Actors Guild (SAG-AFTRA) enjoy protections for digital replicas created for employment and independently, with additional protections for background actors. These protections include policies requiring consent per use, payment of standard residuals for use, consent required from representatives after death, guidelines for digital alterations, and notification requirements. Notably, unions enacted these guidelines, acting as a regulatory body to assist in protecting the rights of performers as technology and digital replicas evolve when the law cannot catch up as quickly.  Both SAG-AFTRA and the Writers Guild of America (WGA) strikes last summer reinforced the unions' ability to protect members from AI by removing the financial incentive to replace real actors entirely. This is because using a digital replica requires equal compensation and a minimum number of background actors. It is important to note that SAG-AFTRA protections are for audiovisual performances, and not necessarily print ads, so these protections may not even apply to deepfake photographs. 

Protections surrounding unauthorized NIL use is especially important as companies like Meta have been racking up digital scans of real people to train different AIs. The participants in one Meta study signed away certain NIL rights in perpetuity, with the only protection listed in the job posting stating that the scan would not be used for commercial purposes. This means that Meta may be able to use the scan of the participant to create a deepfake and use said deepfake for expressive purposes. Individuals should consult counsel before signing an agreement that allows access to an AI digital replica in perpetuity. The requirement in the proposed AI laws mandating representation for licenses could help address these situations.  Although counsel can be out of reach for some performers due to cost, a wider distribution of the protections provided by the SAG-AFTRA could help to solve these issues. 

Furthermore, film studios will likely start scanning their main actors to create digital replicas of them on demand in case of an actor’s absence, as they have already begun doing with background actors. In cases where a main actor dies during principal photography, like the death of actor Paul Walker during the filming of “Furious 7,” digital replicas allow for the completion of the film in the face of tragedy while honoring the actor’s legacy. When attorneys negotiate actor agreements, they should keep in mind that studios will be taking digital scans to create replicas and the NIL provisions should be negotiated accordingly. While the guild regulations are helpful, they often represent the mandatory minimum protections needed—contractual terms can provide more full coverage protection.  It should also be clear how the actor or their estate will be compensated if the use of digital replicas is necessary. 

Attorneys who assist famous clients in both trust and estates and entertainment practices need to enhance the protection of their clients against unauthorized digital replicas through contractual or will provisions. For example, some celebrities may not want their NIL to be used for commercial purposes. People with marketable personalities should follow in the footsteps of Robin Williams by putting in his will that his rights would pass to a foundation and that there will be no commercial use of his image or voice, pre-recorded audiovisual works, or holograms of him until 2039. This will provision successfully prevented Disney from using pre-recorded clippings of Robin Williams voicing “Aladdin”’s Genie to create a posthumous sequel to “Aladdin.” However, Disney may have simply avoided the use because of the fear of another lawsuit from Williams’s estate, not necessarily because they thought it was an enforceable will provision. Disney crossed a line with Williams in the original Aladdin movie when they used his voice to merchandise products when he expressly told them not to do so, which ended in Disney sending Williams a Picasso painting for his trouble. Regardless of the absolute efficacy of these provisions, it would be helpful for celebrities to include guidelines as to how they want their NIL used after they die. For those who foresee dying with valuable estates, wills should outline specific commercial uses of a digital replica that the deceased would consent to, if any, and conversations or statements that they would allow a digital replica to use in those scenarios. 

CONCLUSION

The advancement of AI technology creates an opportunity to fill gaps in the current right of publicity laws by illuminating the need for a uniform standard. The law can often be slow to catch up to technology, but there are enhanced risks with the current lack of protection, such as inconsistent results in how publicity rights are created or infringed depending on the state. As technology has driven alterations in the right of publicity laws before, the current laws should be no exception. The dead can no longer defend themselves or their image, so it is up to the living to balance the deceased’s interests with their own.