Personal Identity Protection | IP Law | Life After Death

Introduction: The New Life of the Dead

In an age where AI can generate hyper-realistic voice and video, the afterlife of celebrity likeness is no longer metaphorical—it’s digital, marketable, and increasingly litigated. The emergence of “virtual twins”, AI-powered avatars of deceased individuals, as well as holograms, and the growing commercial use of postmortem name, image, and likeness (NIL) have ignited new legal challenges.

From a holographic Whitney Houston performing in Las Vegas to AI-generated ads featuring long-gone film stars, the once-taboo idea of digitally resurrecting the dead is becoming standard entertainment fare. But as this market expands, so does the legal uncertainty surrounding who owns the right to use a person’s identity after death—and for how long.

This article explores the evolving legal landscape of postmortem NIL rights, focusing on jurisdictional differences, estate planning considerations, licensing trends, and the growing role of digital identity ethics in law and business.

I. NIL Rights: What Do They Protect?

Name, image, and likeness (NIL) rights—also referred to as right of publicity—generally protect individuals from unauthorized commercial exploitation of:

• Name or pseudonym
• Likeness (including digital avatars or lookalikes)
• Voice, gestures, signature, or other identifying features
• Persona or brand associated with identity

While many jurisdictions treat NIL as a privacy right during life, some also recognize postmortem publicity rights—giving estates or heirs the ability to control and license a person’s identity after death.

II. A Patchwork of Postmortem Rights

United States: State-Level Recognition

There is no federal postmortem right of publicity in the U.S.—instead, protection depends on state law. Key states include:

• California: Civil Code § 3344.1 provides a 70-year postmortem right of publicity for deceased individuals (including fictional characters).
• Tennessee: Home of Elvis Presley, the state offers strong estate rights for commercial use of name and likeness.
• Indiana: Provides 100 years of protection post-death.
• New York: As of 2021, recognizes a postmortem right (40 years) for deceased individuals with commercial value, including digital replicas.

Some states—like Wisconsin or Massachusetts—do not recognize postmortem rights at all, creating forum shopping incentives and legal ambiguity in interstate disputes.

Example: In CMG Worldwide v. The Hebrew University of Jerusalem, the parties disputed who controlled Albert Einstein’s likeness decades after his death—highlighting how publicity rights often intersect with will interpretation, state law, and licensing.

III. The Rise of Virtual Twins and Digital Avatars

Advancements in generative AI, deep learning, and motion capture now allow companies to digitally re-create the appearance, voice, and behavior of deceased individuals with uncanny realism.

Common Use Cases:

• AI-generated commercials featuring iconic actors (e.g., James Dean, Audrey Hepburn)
• Holographic concerts and live performances
• AI chatbots trained on interviews and letters of the deceased
• Metaverse-based “immortality” projects simulating interactive versions of public figures

These uses raise key legal and ethical questions:

• Is consent before death required?
• Who controls postmortem approvals: heirs, agents, or tech companies?
• What happens when multiple parties claim ownership or control?

IV. Contracting for the Afterlife: Wills, Licenses, and Estate Planning

Celebrities increasingly include digital rights language in wills, trusts, and licensing agreements. Yet many older estates lack clarity, resulting in legal conflict or reputational risk.

Estate Planning Musts:

• Explicit mention of postmortem NIL rights
• Designation of licensing agents or management companies
• Provisions for digital replicas, AI training, and derivative content
• Revenue-sharing structures for heirs and rights holders

Without such planning, disputes over unauthorized use or moral legacy can arise. In some cases, digital resurrection may violate the decedent’s wishes or dilute their brand.

Practice Tip: Lawyers drafting celebrity wills or licensing deals should include a “digital likeness clause” explicitly addressing generative AI and synthetic media.

V. The Ethics and Risks of Postmortem Commercialization

Even when legal, postmortem use of a person’s likeness can raise significant ethical and brand concerns.

Notable Controversies:

• Anthony Bourdain’s documentary used AI to simulate his voice without prior disclosure, sparking outrage.
• Robin Williams’ estate placed a 25-year ban on commercial use of his likeness posthumously to avoid exploitation.
• Michael Jackson’s hologram performance raised questions about consent and artistic integrity.

Moral rights, while not always recognized under U.S. law, are increasingly part of the conversation—particularly in jurisdictions like France, where personality and dignity are legally protected even after death.

Companies using digital twins must weigh market value against public perception and potential backlash.

VI. Global Landscape: Diverging Legal Norms

France and parts of Europe treat personality rights as moral and inalienable, extending protection even posthumously to descendants.

Japan recognizes personality and image rights but does not provide explicit postmortem protections.

Australia lacks a coherent right of publicity framework but recognizes potential protection under passing off or consumer law.

For multinational projects—such as international ad campaigns or metaverse concerts—navigating conflicting laws is a growing challenge.

VII. Practical Guidance for Rights Holders and Platforms

Whether representing estates, talent agencies, or tech platforms, practitioners should implement proactive safeguards:

Audit Existing Agreements

• Identify who owns postmortem NIL rights
• Clarify scope of license (territory, duration, media)

Include AI-Specific Clauses

• Consent for training data
• Restrictions on use in new genres (e.g., adult, political, violent)
• Revocation rights for heirs

Implement Disclosure Protocols

• Label AI-generated personas clearly in all media
• Avoid false endorsement or brand confusion

Consult Ethicists and PR Teams

• Vet projects involving deceased individuals for reputational sensitivity
• Engage with fan communities and surviving relatives when appropriate

Conclusion: From Legacy to Licensing

The digital afterlife is no longer theoretical. Whether as holograms, avatars, or AI-generated voices, the likeness of the dead has become a valuable—sometimes controversial—asset in entertainment, advertising, and beyond.

As technology advances and digital identity becomes increasingly commodified, lawyers must blend estate planning, IP rights, and ethical foresight to protect clients, preserve reputations, and honor legacy.

For brands and platforms, the question isn’t just can we bring someone back—but should we, and under what terms?