New technology has evolved to the point where the entertainment world has welcomed a strange new type of performance: one that the artist does not even need to be present for. From ABBA Voyage in London to resurrecting the dead, such as Tupac Shakur’s digital appearance at Coachella (2012), artists have been ‘performing’ without the need to physically be there. While undeniably impressive, these concerts cause some significant legal and ethical concerns: who actually owns the rights to the deceased artist’s image? And who, if anyone, has the right to ‘resurrect’ them?
Despite the common misconception that these apparitions are ‘holograms’, the technology behind them is in fact a mix of CGI (computer-generated imagery) and theatre tricks such as pepper’s ghost. There are two approaches to creating these digital ‘avatars’. The direct approach, used, for example, in the ABBA Voyage concert, uses live actors. These actors (or, in the case of ABBA Voyage, the actual members of the band) perform in front of a blue or green screen wearing sensors. Infrared cameras are used to record their performance. Motion capture records their movements and facial expressions (in this case, 160 cameras recorded the members of the band’s performances over a 5 week period). Theatre tricks, such as ‘pepper’s ghost’ from the 19th century helps to enhance the illusion, making it more realistic by projecting images of performance on a screen, creating the appearance of a 3D figure. The indirect approach, however, uses recordings of archival performances and compiles them to create a ‘new’ performance through digital or computer software.
Production companies, such as ILM (the company behind ABBA Voyage) and Dneg (a large, UK-Indian company based in London) are looking into how AI may help this technology evolve, with Dneg acquiring the AI company Metaphysic, merging it with its technology division (Brahma). This, while a huge advancement in technology, poses certain concerns; the technology has already evolved such that one can create the illusion of a person who is not actually there, including those who are deceased. For example, the ‘hologram’ (in reality, a CGI image) of Tupac Shakur at the 2012 Coachella, 16 years after his death in 1996. If AI gets involved, what could be created next? Who has the rights to the image being created?
The legal frameworks in place to protect artists are not clear cut and simple, and vary from country to country (or, indeed, state to state). While the use of their work is more clear, by getting permission from their record label or production company in respect of the master recordings, or the publisher (in respect of the songs), the use of an artist’s image is more complex.
Personality rights refer to the rights to control the use of one’s name, image, likeness and voice to avoid the exploitation of these characteristics in commercial contexts.
These are considered property, so can be passed to the estate or beneficiaries on the death of the artist.
An example of personality rights in action is in Ford v Midler, where Bette Midler refused an offer to use her voice in a Ford commercial. The company hired a singer to mimic her voice and used one of her songs, editing it to fit the advertisement. This was considered unlawful, as Midler had not given her consent for her voice to be used. The jury was in her favor and she was awarded in damages what she would have received for the commercial.
While the US does not have a federal law protecting personality rights, some states recognise rights of publicity, protecting artists against the unauthorised use of their name, image, likeness or voice in commercial contexts.
California’s Celebrities Rights Act (1985) protects the image, voice and likeness of a celebrity for 70 years after their death. This law was recently (as of January 2025) expanded to include ‘digital’ replications of the artists.
New York published a law on 21st May 2021 publishing post-mortem personality rights for ‘deceased performers’ and ‘deceased personalities’.
The artists must be domiciled in New York at the time of their death.
‘Deceased personalities’ are given traditional rights of publicity to protect them from the commercial use of their name, image and likeness for commercial purposes.
‘Deceased performers’ under this law are given more specific protection against the unauthorised use of ‘digital replicas’ replicating their likeness and work, where the intention is to deceive the public into thinking that the artist is present.
While this may be a step in the correct direction, is it enough?
In most cases, the public would be aware that the artist is deceased. Does that make it ethical to exploit them, using their image without their explicit consent, after their death?
In the UK, the law offers even less protection from these issues.
Personality rights are not recognised, an individual must rely on existing legal frameworks.
For example, passing off, protecting against false endorsements. The estate would need to prove that the artist had commercial ‘goodwill’, that the intention of someone using their image was to deceive the public and that damage occurred as a result.
Copyright laws state that permission would be needed from whoever owns the rights to the artist’s work to use it in a performance. While this may be clear and simple, the emergence of AI technology complicates it: if the voice and style of an artist is used to generate a new performance by AI (artificial intelligence) is that considered unlawful?
Trademark may help to clarify this issue: if an artist has trademarked their name or image, use could be considered an infringement. However, this only applies where there is a trademark, which many artists may not have.
Data protection may offer strong protection against the use of someone’s image, however, would not apply to deceased artists. This means that estates would not have much protection under GDPR for the rights of the artists.
While there are conversations about making changes to the law with the emergence of AI and other technology, as of yet the legal concerns are unclear.
If they were to be clarified, ethical issues would still remain. Who can actually consent for a deceased performer? Is it a tribute or exploitation? Where is the line, and should it have been drawn already?
In conclusion, technology is rapidly advancing and the law has yet to catch up. Without formal post-humous personality rights, estates have little protection. In the UK, they’re forced to rely on existing passing off, copyright or trademark laws which were not prepared to deal with digital forms. While some states in the US protect artists to a certain extent, there are no federal laws protecting artists or their estates from these computer generated resurrections.
This remains a complex legal and ethical question, and as technology continues to advance, the legal system must too.
by AMALIA PAUL
New Media Law
July 2025
For more information, please contact:
Ian Penman, ian@newmedia.law, +44(0)7765 244 111
National Law Journal, 2025. A New Year Brings New Restrictions Relating to AI and California Performers. National Law Journal. [online] Available at: https://www.law.com/nationallawjournal/2025/01/01/a-new-year-brings-new-restrictions-relating-to-ai-and-california-performers/ [Accessed 4 Jul. 2025]
California Civil Code § 3344.1 (1985). Use of Deceased Personality’s Name, Voice, Signature, Photograph, or Likeness. [online] California Legislative Information. Available at: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=3344.1.&lawCode=CIV[Accessed 4 Jul. 2025]
New York Civil Rights Law § 50-f (2021). Right of Publicity for Deceased Performers and Personalities. [online] Available at: https://www.nysenate.gov/legislation/laws/CVP/50-F [Accessed 4 Jul. 2025]