Understanding Legal Risks In Posthumous Digital Likeness Licensing has become essential as AI-enabled media turns deceased performers into marketable assets. Estates, brands, and studios increasingly sign deals for ads, films, games, and virtual concerts, but the legal terrain is uneven and fast-moving. This guide explains the risks, safeguards, and practical steps to license ethically and enforceably—before a single frame gets rendered.
Posthumous publicity rights and right of publicity
Licensing a digital likeness after death usually hinges on posthumous publicity rights (often described as the right of publicity): the ability to control commercial use of a person’s name, image, voice, signature, or other identifying traits. The first legal risk is assuming these rights are universal. They are not. In 2025, the most common licensing failures arise from jurisdiction mismatch—a deal drafted under one state or country’s rules applied to distribution in another.
Key issues to resolve early:
- Does a posthumous right exist? Some jurisdictions recognize it clearly, others do not, and many treat it differently depending on whether the use is commercial advertising versus expressive works.
- Who owns the right? Ownership can sit with heirs, a trust, a corporate entity, or a designated manager. Competing claims within a family are a frequent source of injunctions.
- How long does protection last? Duration varies widely, and terms can differ for name/likeness versus voice or other attributes.
- What counts as “likeness”? A photoreal face is obvious, but “sound-alike” voice models, stylized avatars, and deepfake composites can still trigger claims if identification is likely.
Practical safeguard: build a rights map before negotiations. Identify where the content will be created, hosted, and distributed; where the person lived and died; and where the estate is administered. Then confirm, in writing, which law governs the agreement and which courts have jurisdiction. This reduces the risk of signing a valid contract that still fails where the audience actually is.
Estate authority and chain of title
The second major risk is a weak chain of title. Even if a producer believes they licensed properly, the deal can unravel if the signatory lacks authority or if key rights were previously granted.
Common chain-of-title breakdowns in posthumous digital likeness deals:
- Outdated estate documents that do not address digital replicas or AI-generated performances.
- Multiple heirs or beneficiaries who hold overlapping interests and disagree on approvals, revenue splits, or moral boundaries.
- Prior contracts the deceased signed during life (film, music, endorsement, union, or management agreements) that restrict posthumous use or require guild approvals.
- Trademark conflicts where a name or signature is also used as a brand, controlled by an entity separate from the estate.
To strengthen estate authority, require a documentation package that matches the scope of your intended use. At minimum:
- Proof of authority (letters testamentary/administration or equivalent documentation) showing who can bind the estate.
- Assignment history confirming whether publicity rights were assigned to a trust, company, or third party.
- Representations and warranties that no conflicting licenses exist for the same territory, term, or media—and a duty to disclose known disputes.
- Indemnities tied to the most likely claims (right of publicity, false endorsement, defamation, and unfair competition).
Answering a common follow-up: Is a will enough? Often, no. You need proof the person signing has current legal authority and that the estate can grant the specific rights you need. For high-budget uses, a legal opinion letter on chain of title can be cheaper than litigation later.
AI deepfakes compliance and consent
AI-driven likeness creation increases risk because the “performance” can be generated, edited, and repurposed endlessly. A standard photo or archival clip license rarely anticipates the compliance requirements of AI deepfakes. In 2025, the highest-risk pattern is using broad language like “all media now known or hereafter devised” without adding AI-specific controls. That phrasing may secure flexibility, but it also increases ambiguity, disputes, and reputational fallout.
Build consent and compliance into the contract and the production workflow:
- Define “digital replica” precisely: face, body, voice, mannerisms, biometric identifiers, and whether the model is trained on private materials.
- Limit training data sources to authorized materials and document them. Unlicensed datasets can create separate infringement claims.
- Require approvals for scripts, dialogue, wardrobe, and context. Estates often care more about how the likeness is used than the fee.
- Implement provenance controls: watermarking, metadata logs, versioning, and retention policies that show what was generated, when, and from which inputs.
- Set reuse rules: prohibit re-targeting into new ads, political content, or sensitive categories without fresh approvals and fees.
Another follow-up readers ask: Is disclosure legally required? Requirements vary, but disclosure is increasingly a best practice to reduce deception claims, consumer protection scrutiny, and brand backlash. Where disclosure is not mandated, parties may still contractually require it to manage reputational risk and align with platform policies.
Copyright, trademarks, and moral rights
Posthumous likeness licensing is not only about publicity rights. Digital content also implicates copyright, trademarks, and, in many countries, moral rights. Misunderstanding these layers can derail distribution even when publicity rights are clear.
Where copyright commonly enters the picture:
- Underlying footage and photos: owning a likeness right does not automatically grant rights to the photographs, films, or recordings used to train or composite the replica.
- Sound recordings and compositions: voice recreation may intersect with master recording rights, publishing rights, and performance rights depending on what is sampled or imitated.
- Newly created assets: the digital model, textures, rigging, and performance capture outputs need clear ownership terms to avoid disputes between vendors, studios, and the estate.
Trademarks matter when the deceased’s name, signature, or logo functions as a brand. A “false endorsement” or “passing off” claim can arise if a digital likeness implies sponsorship of a product or message the person never supported. This is especially risky in advertising, product packaging, and influencer-style campaigns.
Moral rights and personality protections can restrict derogatory treatment or distortions in certain territories. Even if a use is “authorized” by an estate, distributors may face claims if the work is deemed prejudicial to honor or reputation under local law. To reduce risk:
- Clear the underlying materials (footage, photos, audio) separately from likeness rights.
- Specify ownership and licenses for the new digital assets and any AI model weights.
- Define prohibited portrayals (explicit content, hate content, political endorsements, medical claims, or other sensitive contexts).
Cross-border licensing and privacy law
Digital likeness campaigns are borderless by default: global streaming, social platforms, and app stores distribute instantly. That makes cross-border licensing a core legal risk, not an edge case. A license that works for one market can trigger claims elsewhere—especially if the content is targeted, localized, or monetized in a jurisdiction with stronger personality protections.
Cross-border risk factors to plan for:
- Territory definitions: “worldwide” is common, but enforcement and compliance obligations still differ by country and platform.
- Governing law vs. mandatory local law: even with a chosen law clause, certain consumer, privacy, or personality rules may apply where audiences are located.
- Platform policies: major platforms increasingly require documentation for synthetic media, identity use, and deceptive practices. A license can be valid yet still fail content review.
- Privacy and biometric rules: training and generating realistic faces or voices can implicate biometric processing laws, especially when data sources include private or non-public materials.
Operational answer to “How do we distribute safely?” Use a territory-and-platform matrix. List each distribution channel, its synthetic media rules, ad policies, and documentation needs. Then align contract deliverables (proof of rights, approvals, disclosures) with that matrix so compliance is built into production, not patched in after launch.
Contract safeguards, insurance, and dispute planning
Even well-intentioned deals fail without enforceable guardrails. Strong contracts do more than grant rights; they prevent conflicts by specifying decision-making, approvals, auditability, and remedies. In 2025, the most effective agreements treat posthumous digital likenesses like a high-risk IP category with a dedicated governance model.
Essential contract terms to reduce legal and business risk:
- Scope: exact uses (film, game, ad), media formats, and whether AI generation is allowed; include a prohibition on unapproved derivative uses.
- Term and sunset: define a license duration plus post-term takedown obligations; add rules for archival availability and “evergreen” platform hosting.
- Approval workflow: who approves scripts, final renders, marketing cutdowns, and localizations; set response times and tie-break procedures.
- Compensation: upfront fees, royalties, bonuses, and reuse fees; clarify revenue definitions, reporting cadence, and audit rights.
- Morals and context clauses: limit sensitive categories and require contextual integrity (no implied personal endorsements without explicit authorization).
- Security and access controls: restrict who can access model files; require encryption, logging, and vendor obligations; mandate incident notification timelines.
- Remedies: fast injunctive relief, takedown cooperation, and liquidated damages where appropriate; specify who pays for corrective campaigns.
Insurance is also part of risk management. For commercial releases, consider media liability or errors & omissions coverage that explicitly contemplates synthetic media and right-of-publicity exposures. Insurers will often ask for chain-of-title evidence, approvals, and disclosure practices—another reason to document your process thoroughly.
FAQs
- Who can legally license a deceased person’s digital likeness?
Usually the estate representative or an entity that holds assigned publicity rights, but authority varies by jurisdiction and by the deceased’s estate plan. Always verify legal authority and confirm no prior exclusive deals conflict with your intended use.
- Is posthumous digital likeness licensing legal for advertising?
It can be, but advertising is typically higher risk than expressive works because it more directly implies endorsement. You need clear publicity rights authority, trademark/false endorsement clearance, and strict controls on context, claims, and disclosures.
- Do we need to clear copyright if we have likeness permission?
Yes. Likeness rights and copyright are separate. If you use photographs, film clips, or recordings (or train on them), you may need licenses from copyright owners in addition to estate permissions.
- Can we create a “sound-alike” voice without licensing the estate?
Possibly, but it is risky. A recognizable imitation can trigger right-of-publicity, unfair competition, or false endorsement claims, particularly if it suggests sponsorship. The safer approach is to obtain clear authorization and define how the voice may be used.
- What contract clauses matter most for AI-generated replicas?
Precise definitions of digital replica and training data, approval rights, restrictions on reuse and derivatives, disclosure requirements, security controls for model files, and clear remedies including takedowns and injunctive relief.
- How do we reduce cross-border risk for global distribution?
Build a territory-and-platform compliance matrix, clear rights for underlying assets, and align your agreement to mandatory local rules where distribution is targeted. Also document consent, provenance, and approvals to satisfy platform and distributor requirements.
Posthumous digital likeness deals succeed when teams treat them as multi-layer rights projects, not simple endorsements. Map publicity rights by jurisdiction, prove estate authority, clear copyrights and trademarks, and add AI-specific controls for training, approvals, security, and reuse. In 2025, the clearest takeaway is practical: document everything, contract for governance, and design compliance into production before launch.