Picture watching a new film and seeing a familiar actor on screen - except the actor had died years ago. They had never filmed the scene, and had never agreed to appear in it. This is no longer a particularly hypothetical scenario.
Generative artificial intelligence (“AI”) is now capable of producing a performance from a deceased actor. By reproducing an individual’s distinctive features, these systems can place performers in works in which they never participated. Such posthumous digital performances stand apart from contemporaneous projects created by the performer during the course of their lifetime. A digital counterpart will attribute an expression based on predictive patterns that the person depicted may neither have contemplated nor authorised. As these tools become more accessible, the legal and ethical framework required to regulate their production and commercial exploitation becomes correspondingly uncertain.
The central issue, therefore, extends beyond protecting deceased performers from isolated “deepfakes”. It concerns whether the law should recognise a distinct posthumous interest in digital identity and, if so, who can allocate that interest without turning personality into a perpetual form of intellectual property (IP) or unduly restricting expression in the public domain.
When the Performer Lives on as a Digital Double
A performance is not the same thing as a person; UK law grants performers a series of statutory rights designed to facilitate their commercial exploitation. Under the Copyright, Designs and Patents Act 1988 (CDPA) [1], those rights may be infringed by the unauthorized recording of the whole or a substantial part of a qualifying performance (s.182), including public dealings involving an unauthorised recording (ss.183-184). These rights exist independently from copyright in the underlying work.
What these provisions do not establish, however, is a general proprietary right over the performer’s identity. The distinction matters because appropriating the value associated with a performance is not necessarily the same as copying the performance itself. Copyright and performers’ rights may be capable of addressing the latter, but an AI replica can raise a different question: whether the law should protect the commercial and expressive value embodied in the performer’s identity even where no recognisable part of an original performance has been reproduced.
AI brings this performative distinction into sharp focus. Where a system reproduces an existing recording, copyright or performers’ rights may provide a basis for challenging its use. The position is less straightforward where the system generates an entirely new performance that merely looks or sounds like a deceased actor.
The UK Government’s 2026 report acknowledges this gap, noting that performers’ economic and moral rights under Part 2 CDPA attach only to recordings of existing performances [2]. It may not assist where AI generates a new performance containing a digital replica of the performer. The Government is therefore considering whether additional protection for digital replicas or personality is necessary. After all, the Rome Convention [3] protects performers and their fixation rather than a general right over the performer’s identity.
The result is a strange legal distinction: the law can protect what the performer actually did, without necessarily protecting the person who did it.
What survives when the performer is no longer here to object?
The problem surrounding this distinction only becomes more complex after death. The 2024 dispute concerning George Carlin provides a useful example [4]. Carlin’s estate sued the creators of an AI-generated comedy routine which imitated Carlin’s voice, style and opinions, alleging both copyright infringement and violation of his publicity rights. The litigation settled, with the defendants agreeing to remove the material and refrain from using Carlin’s likeness. The settlement therefore established no judicial test governing AI-generated replicas. Nevertheless, the dispute demonstrates how distinct legal interests may converge where an AI output draws simultaneously upon a deceased performer’s existing works and the identity associated with them [4].
That leaves a more fundamental question. Is the law required to give the estate control over the performer’s identity at all?
American publicity-rights law shows how difficult the answer can be. In Memphis Development Foundation v Factors Etc Inc [5], the Sixth Circuit held that Elvis Presley’s right of publicity did not survive death and that the ability to commercially exploit his identity therefore passed into the public domain. Other US courts reached the opposite conclusion, most notably in Elvis Presley International Memorial Foundation v Crowell [6], in which Tennessee law recognised a posthumous right of publicity.
The contrast is revealing. A performer’s identity can be understood either as an interest which ends with the individual or as a commercial property right capable of surviving them.
Shaw Family Archives Ltd v CMG Worldwide Inc [7] exposes another difficulty: inheritance cannot simply be assumed. In the Marilyn Monroe litigation, the court held that Monroe could not have transferred by will a property right she did not possess when she died in 1962, when neither New York, California nor Indiana recognised a descendible postmortem publicity right.
These cases expose the weakness of relying upon an unrestricted property model. If a persona is treated as property, difficult questions immediately arise over who owns it, whether it can be inherited, how long it lasts and whether subsequent legislation can retrospectively create rights in an identity that did not exist at death. For AI, those questions are no longer theoretical.
The Public Domain Problem
There is a strong argument for resisting perpetual control. A digital replica can make a deceased performer appear in something they had never encountered, even if that extends to endorsing a product or expressing misaligned political opinions [8]. Access to this technology can do more than reproduce an image: in some sense, it can manufacture a new version of a person.
Posthumous reproduction can alter the relationship between a performer and their public perception. Considering Mark Bartholomew’s ‘A Right to Be Left Dead’ [9], this concern is met with legitimate reservations. It is argued that postmortem protection for digital reanimation cannot simply replicate the legal treatment of living individuals. On balance, a proposal for a narrowly constructed right that includes a minimal term and a requirement of prior exploitation, would aim to preserve artistic innovation and technological development.
After all, the public domain is not simply a place where rights are forgotten. It is what remains available for other people to use, reinterpret and build upon. A perpetual right over a celebrity’s image could therefore transform personality into something resembling an indefinite intellectual property right.
US publicity-rights cases provide some useful ways of thinking about that distinction. Rogers v Grimaldi provides one established way of thinking about that boundary. The Second Circuit protected the use of a person’s name in an expressive work where it had ‘artistic relevance’ [10] and was not explicitly misleading as to source or endorsement. Similarly, Comedy III Productions v Gary Saderup developed California’s transformative-use approach, asking whether a work containing a celebrity’s likeness has been sufficiently transformed into the creator’s own expression rather than remaining principally an appropriation of the celebrity’s likeness. The principle is valuable for AI because a digital recreation may be used to communicate something about a performer rather than to exploit the performer commercially [11].
The opposite extreme is illustrated by Zacchini v Scripps-Howard. There, the Supreme Court demonstrated that appropriating the entirety of a performer’s act could still be actionable notwithstanding its presentation as news [13].
The lesson for AI is not that one side should always win: it is that purpose and context matter. The law should be particularly sceptical of a digital replica whose principal purpose is to appropriate the economic value of the performer, while remaining cautious about restricting works that use the replica as part of new expression.
Towards a Limited Right of Control
US legislative responses increasingly treat a digital replica used to sell a product very differently from one used in works such as a documentary. The proposed NO FAKES Act [14] would create a federal property right in highly realistic digital replicas, while providing exceptions for uses including news, documentary, commentary, criticism, satire and parody [15]. Across the jurisdictional pond, the UK could respond by introducing a specific statutory right that need not require absolute control over expression [16].
The UK now has an opportunity to answer that question before the technology accelerates beyond a point of regulation. A new right could be justified, but it should not become a general property right in personality. Instead, legislation could focus on the clearest form of misappropriation: the unauthorised commercial use of a recognisable digital replica which exploits the performer’s identity or falsely suggests their endorsement or participation. In doing so, the protection should also leave room for legitimate expression - including journalism, documentary, criticism, parody and historical or artistic uses. The US experience indicates that an effective regime will need some operative mechanism to balance publicity interests against freedom of expression.
Development of a limited posthumous term would recognise that estates may have legitimate interests in managing a performer’s legacy, while acknowledging that those interests cannot automatically outweigh the public’s eventual ability to engage with cultural figures freely. Bartholomew's proposal for a structured postmortem right provides one such possible model. This would also regulate a particular kind of “appropriation of identity” which existing copyright and performers’ rights may not capture.
The Government’s current approach points towards precisely this debate. The March 2026 report acknowledges that existing UK law leaves gaps and is considering whether new protection for digital replicas or personality is appropriate, while recognising the need to preserve legitimate innovation. Ultimately, achieving the appropriate balance is the central challenge, although it is achievable. The law should aim to protect individuals from having their identity commercially appropriated, without making identity itself an endless form of IP.
The digital double may allow a performer to appear long after death, but that does not mean their legal identity should live forever under someone else’s control. Eventually, even a digital double may enter into the public domain.
Harvey Read, September 2026
1: Copyright, Designs and Patents Act 1988
2: https://www.gov.uk/government/publications/report-and-impact-assessment-on-copyright-and-artificial-intelligence/report-on-copyright-and-artificial-intelligence
3: https://www.wipo.int/en/web/treaties/ip/rome/summary_rome
4: https://www.reuters.com/legal/transactional/george-carlins-estate-settles-lawsuit-over-ai-generated-comedy-routine-2024-04-03/
5: https://law.justia.com/cases/federal/district-courts/FSupp/441/1323/1427639/
6: https://eprints.whiterose.ac.uk/id/eprint/180330/1/eslj-708-wall.pdf
7: https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2005cv03939/310990/106/
8: https://www.tate.org.uk/research/tate-papers/08/posthumous-legal-and-ethical-issues
9: https://www.californialawreview.org/print/left-dead
10: https://www.skadden.com/insights/publications/2023/06/supreme-court-sharply-limits-applicability
11: https://wfujournaloflawandpolicy.org/deepfakes-of-the-dead-applying-postmortem-publicity-law-to-artificial-intelligence-digital-replicas/
12: cf.11
13: https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1245&context=acteclj
14: https://www.reedsmith.com/articles/ai-and-publicity-rights-the-no-fakes-act-strikes-a-chord/
15: https://ssrn.com/abstract=4635039
16: https://www.vwv.co.uk/insights/articles/copyright-and-artificial-intelligence-the-uks-pivot-towards-a-new-digital-replica-right/