Digital Replica Checklist: Consent, Scope, Compensation, Credit, and Revocation

By Casey Scott McKay · 2026-06-12

A digital replica consent fails on provisions nobody negotiated, and the standard likeness release satisfies almost none of the new statutory requirements. This checklist runs the work in twelve phases: scope the use, run the state analysis, describe the source material and the data set, write the use description and exclusions, set the term and revocation, structure compensation, handle representation and minors, handle deceased individuals and the domicile question, apply union and employment terms, assemble the clearance file, label the output, and enforce against unauthorized replicas. Each box gives the reason, the authority, and the trap. Boxes marked as gates should clear before any capture session. Three worked clearances run throughout.

IP and Technology > Right of Publicity | Checklist | Published 12 June 2026 - Updated 31 July 2026 | Casey Scott McKay - marksy.us

Summary. A digital replica consent fails on provisions nobody negotiated, and the standard likeness release satisfies almost none of the new statutory requirements. This checklist runs the work in twelve phases: scope the use, run the state analysis, describe the source material and the data set, write the use description and exclusions, set the term and revocation, structure compensation, handle representation and minors, handle deceased individuals and the domicile question, apply union and employment terms, assemble the clearance file, label the output, and enforce against unauthorized replicas. Each box gives the reason, the authority, and the trap. Boxes marked as gates should clear before any capture session. Three worked clearances run throughout.

Keywords: replica consent, scoping questions, state analysis, source material, data set retention, model destruction, use description, excluded categories, duration cap, separate compensation, credit, revocation, assignment, minor consent, estate consent, domicile at death, union agreements, clearance file, disclosure and labeling, enforcement

How to use this checklist

| Phase | What it covers | |---|---| | 1 | Scope the use | | 2 | The state analysis | | 3 | Source material and the data set | | 4 | The use description and exclusions | | 5 | Term, revocation, and assignment | | 6 | Compensation and credit | | 7 | Representation and minors | | 8 | Deceased individuals | | 9 | Union and employment terms | | 10 | The clearance file | | 11 | Disclosure and labeling | | 12 | Enforcement |

Boxes marked [Gate] should clear before any capture session occurs.

The matters. A radio campaign using a retired athlete's synthesized voice; a film completing two scenes with a performer who died during production; and a software company that deployed a customer service assistant using its departed founder's voice with no consent at all.

Phase 1. Scope the use

[ ] [Gate] Identify whose likeness, and whether they are living.
- Why. A living individual consents personally; a deceased individual's rights are held under the law of the domicile at death.
[ ] Identify what will be created.
- Why. A visual replica, a voice model, a combined performance, or edited footage of an actual performance. The last is generally outside the replica statutes; the others are not.
[ ] Identify the use.
- Why. Advertising is doctrinally simplest and most tightly regulated. Expressive works raise the constitutional questions and the carve-outs.
[ ] Identify the territories.
[ ] Write a one-page scoping memorandum before drafting anything.
- Trap. Starting from the standard release and adjusting it, which produces a document satisfying no statute.

Phase 2. The state analysis

[ ] [Gate] Clear against the most demanding applicable statute.
- Trap. Clearing against the state where the agency sits.
[ ] Check the general publicity statute.
- Authority. Cal. Civ. Code § 3344; N.Y. Civ. Rights Law § 51; Tenn. Code § 47-25-1105; Ind. Code § 32-36-1-8.
[ ] Check for a replica-specific provision layered on top.
- Why. A consent valid under the general statute may be insufficient as a replica consent in the same state.
[ ] Check whether voice is enumerated.
[ ] Check whether the statute is limited to commercial or advertising use.
[ ] Check the expressive-work carve-outs, which vary considerably.
[ ] Check whether the statute requires a separate signed document rather than a clause in a longer agreement.
[ ] Note the choice-of-law problem.
- Why. The right's existence follows the individual; the conduct follows the place of use, and courts are not consistent.

Phase 3. Source material and the data set

[ ] Identify the source specifically.
- Why. Scanning session, recording session, photographic reference, production footage, or archival material. Where archival material is used, list it in an exhibit.
[ ] [Gate] Do not assume legacy agreements permit replica use.
- Trap. A grant covering the use of a performance that occurred does not cover generating performances that did not.
[ ] Describe the capture. What is recorded, in what format, over how many sessions.
[ ] Address the data set.
- Why. Who holds it, where, under what security, for how long, and what happens on expiry or termination.
- Trap. A consent describing the performance and silent about the data, so the production has permission to make the film and no clear right to keep the model.
[ ] Address derived models separately from outputs.
[ ] Set a destruction date with certification.
[ ] Check the copyright layer for archival material.
- Authority. 17 U.S.C. § 106.
- Why. A label may hold rights in the recording while the performer holds the publicity interest in the voice, and a training use may require both.

Phase 4. The use description and exclusions

[ ] [Gate] Write the use description as an exhibit, not a sentence.
- Why. Production or campaign, character or role, media, platforms, territories, and sequencing.
- Trap. "Marketing and promotional purposes in all media now known or hereafter devised," which describes nothing and satisfies no replica statute.
[ ] Grant creation and use separately.
[ ] Enumerate excluded categories.
- Why. Political content, tobacco, alcohol, firearms, adult content, gambling, competing endorsements, and anything inconsistent with the individual's other agreements.
[ ] Address modification and combination with other performances or replicas.
[ ] Address sequels, derivatives, trailers, posters, and platform promotion.
- Trap. Cleared for the film, not the trailer.
[ ] Add a trailing prohibition on competitive, commercial, and product development use where the grant is narrow.

Phase 5. Term, revocation, and assignment

[ ] [Gate] State a term within any statutory cap.
- Trap. A perpetual grant, unenforceable where caps apply and freely negotiable to a term everywhere else.
[ ] State what happens at expiry.
- Why. Whether existing distributions continue, whether the model is destroyed, and whether renewal requires renegotiation.
[ ] Address revocation.
- Why. Whether consent may be withdrawn for future uses, on what notice, and with what effect on distributed material. Some statutes supply a revocation right regardless of contract.
[ ] Address termination for cause, including use outside the described scope.
[ ] [Gate] Address assignment.
- Why. Whether the consent, the data set, and the model may transfer, including in an acquisition.
- Trap. The term most likely to matter years later and least likely to be negotiated.
[ ] State what survives termination.

Phase 6. Compensation and credit

[ ] Pay separately for creation and for use.
- Trap. A single session fee treated as covering both, which is the structure the collective agreements were written to eliminate.
[ ] Structure use payments as a flat fee, term license, residual, or participation, matched to how the replica will be exploited.
[ ] Set rates for uses beyond scope, or an obligation to negotiate.
[ ] Address payment for continued retention of the model beyond the term.
[ ] Address credit and attribution where the individual wants it or a collective agreement requires it.

Phase 7. Representation and minors

[ ] Check whether the statute conditions validity on representation.
- Why. Several require the involvement of counsel, an agent, or a union where the individual is represented, and impose formalities where they are not.
[ ] Document who advised the individual, and that they reviewed the consent.
[ ] For minors, obtain guardian consent, check whether court approval is required, and observe the shorter maximum terms.
[ ] Observe form requirements, including any separate-document or conspicuous-formatting rule.
[ ] Do not present the consent at the session.
- Trap. The document arriving with the schedule and the pressure. The only real leverage is before the capture happens.

Phase 8. Deceased individuals

[ ] [Gate] Determine the domicile at death.
- Why. It generally governs whether a descendible right exists and for how long.
[ ] Determine who holds the right, and build the chain of title.
[ ] Check registration requirements.
- Authority. Cal. Civ. Code § 3344.1.
[ ] Check the replica-specific post-mortem provisions.
- Authority. N.Y. Civ. Rights Law § 50-f.
[ ] Require the same specificity from the estate as from a living individual.
- Trap. A general estate consent, which is no better than a general release.
[ ] Check the historical and documentary carve-outs where the use is biographical.

Phase 9. Union and employment terms

[ ] Read the applicable collective agreement first.
- Why. Its consent, compensation, and notice requirements are contractual obligations independent of any statute and frequently more demanding.
[ ] Separate the employment from the license.
[ ] Check the replacement restrictions.
- Why. Collective agreements restrict using a replica to replace employment that would otherwise have been offered.
[ ] [Gate] Do not rely on an employment IP assignment.
- Authority. 17 U.S.C. § 102.
- Why. A persona is not a work of authorship and an intellectual property assignment does not transfer a publicity right.
[ ] State expressly that the consent survives departure where a corporate system will keep using the replica.
- Trap. A product built on a departed executive's voice with no surviving consent.

Phase 10. The clearance file

[ ] The scoping memorandum.
[ ] The state analysis, naming the most demanding statute and what it requires.
[ ] The executed consent with all exhibits.
[ ] The representation record.
[ ] The capture record. Session dates, what was captured, where the data resides.
[ ] The chain of title for a deceased individual, with domicile, term, holder, and registration.
[ ] Collective agreement provisions and notices given.
[ ] The compensation record.
[ ] The labeling decision.
[ ] Why it matters. Errors and omissions insurers ask, distributors ask before accepting delivery, and a production that cannot produce this file will be asked to indemnify around the gap. Assembling it during production costs hours; reconstructing it at delivery costs weeks.

Phase 11. Disclosure and labeling

[ ] Label synthetic content.
- Why. Disclosure obligations are expanding in advertising and political communications, provenance standards are being adopted, and voluntary labeling costs nothing while unlabeled synthetic content increasingly reads as concealment.
[ ] Put the labeling decision in the delivery specification where the obligation attaches to the distribution channel.
[ ] Preserve provenance metadata.
- Authority. 17 U.S.C. § 1202.
[ ] Check advertising-specific disclosure obligations.
- Authority. 15 U.S.C. § 45.
[ ] Check election-communication rules where the content depicts a candidate.

Phase 12. Enforcement

[ ] Preserve before demanding.
- Trap. A takedown removes the evidence along with the content.
[ ] Confirm identifiability.
- Authority. Fed. R. Evid. 702.
- Why. The threshold question in every claim, answered with survey evidence and expert testimony on the synthesis.
[ ] Go to the platform first.
- Why. Speed matters more than forum, and most major platforms prohibit unauthorized synthetic depictions. Cite any statute imposing liability for continued hosting after notice.
[ ] Assess the claims in parallel.
- Why. The general publicity statute, any replica provision, false endorsement under 15 U.S.C. § 1125(a) where commercial, and any targeted criminal or civil provision.
[ ] Seek injunctive relief early.
- Authority. Fed. R. Civ. P. 65.
[ ] Understand the damages problem.
- Why. Where the individual would not have licensed at any price, a royalty measure is awkward and actual damages speculative. Statutory damages and fee-shifting drive the choice of statute and forum.
[ ] Consider the copyright lever where a protected recording was used.
- Authority. 17 U.S.C. § 106; 17 U.S.C. § 107.
[ ] Watch preemption.
- Authority. 17 U.S.C. § 301.
- Trap. A claim framed around unauthorized use of a recording rather than around identity invites the argument.

Phase 13. The consent document, element by element

The document is standalone, not a clause inside a longer agreement, because several statutes require that. Confirm each element.

[ ] Parties, by legal and professional name, with the correct entities.
- Trap. A consent to a production company that does not run to its parent or its distributor.
[ ] Definitions. Capture, Data Set, Model, Replica, Output, Permitted Use, Term, Excluded Categories.
- Why. Defining them separately prevents an argument that permission to make a Replica included permission to retain the Model.
[ ] The capture provision, with an exhibit listing any archival material.
[ ] The data set and model provision, with holder, location, security, retention, and destruction.
[ ] Two grants, not one. Creation and use, each with its own scope, term, and compensation.
[ ] The Permitted Use exhibit.
[ ] Excluded Categories, enumerated.
[ ] Modification and combination.
[ ] Term, renewal, and expiry consequences.
[ ] Revocation and termination, with survival.
[ ] Compensation, split.
[ ] Credit and attribution.
[ ] Representations. From the individual, that they have the right to grant. From the producer, that it will use the Replica only as described and will label Outputs where required.
[ ] Assignment, addressed expressly.
[ ] The representation acknowledgment, naming counsel, agent, or union.
[ ] Governing law and dispute resolution, chosen with the applicable publicity statute in mind rather than by habit.
[ ] Signatures, with guardian signature and any court approval for a minor.

Phase 14. Negotiating from the individual's side

The priorities invert. Counsel for the performer, athlete, or executive should work this list.

[ ] Delete the perpetual grant.
- Why. Usually granted, because producers know it is unenforceable in several states.
[ ] Get the exclusions.
- Why. Clients care about these more than about the fee, and producers give them cheaply.
[ ] Get the data destroyed, with a stated date and certification.
- Trap. The most resisted term, because the asset has value beyond the production. The compromise is retention for a stated period with a fee attached.
[ ] Constrain assignment.
- Why. A consent that travels to an acquirer is a consent to a counterparty the individual never evaluated.
[ ] Constrain modification and combination.
- Why. The replica placed in a context the individual would not have accepted is the harm that motivates most of these statutes.
[ ] Seek approval rights over the output, at least for advertising.
[ ] Separate the payments, and negotiate the use fee against exploitation rather than session length.
[ ] Address the estate.
- Why. Clients do not raise this and it becomes their heirs' problem.
[ ] Get credit where a collective agreement does not already supply it.
[ ] Read the underlying engagement agreement too.
- Trap. A broad likeness grant elsewhere in the deal that undercuts the consent's limits.
[ ] Do not sign at the session.

Phase 15. Corporate and non-entertainment uses

The statutes were written with entertainment in mind and the fastest-growing uses are elsewhere. Run these boxes for any corporate deployment.

[ ] The synthesized executive. A founder's or executive's voice or likeness in a customer-facing system, a training video, or automated communications.
- Trap. Assuming the employment relationship supplies the right. It does not.
[ ] [Gate] State that the consent survives departure.
- Why. A system built on a departed executive's voice, with no surviving consent, is a product resting on a right the company does not hold.
[ ] Synthetic customer service agents resembling real employees, or given a persona derived from one.
- Why. Consent from the individual, plus a disclosure decision, because callers increasingly expect to be told.
[ ] Marketing that uses employees.
- Trap. A general model release signed at a photo shoot does not cover synthesis, and the specificity requirements apply regardless of employment.
[ ] Internal training content. Lower risk and not zero, particularly where distributed to customers or partners.
[ ] Product features that let users create replicas.
- Why. This raises the platform's own obligations, its terms of service, its verification of consent, and its exposure for unauthorized replicas created by users. A product design question with legal inputs, addressed before launch rather than after.
[ ] Board and investor materials using a synthesized executive.
[ ] Brief the people who commission this work.
- Why. Corporate uses are decided by people who have never encountered a publicity right, on the reasonable assumption that an employee's likeness is available to the employer.

Phase 16. Distribution and delivery

[ ] Expect the errors and omissions application to ask.
- Why. Insurers now include questions about synthetic content, and the production will be asked to describe the consent.
[ ] Expect the distributor to ask.
- Why. Delivery requirements increasingly include representations about synthetic performances and compliance with applicable replica statutes.
[ ] Put the consent in the chain of title.
- Trap. A gap produces an indemnity demand or a holdback at delivery.
[ ] Check that the warranties flow.
- Why. Production to distributor, distributor to platform, each only as good as the underlying consent.
[ ] Run the territory analysis at distribution.
- Why. A replica cleared for domestic release may need additional analysis elsewhere, and foreign personality and image rights regimes are structurally different.
[ ] Put the labeling requirement in the delivery specification where disclosure attaches to the channel.
[ ] Confirm the trailer, poster, and promotional uses were cleared.
- Trap. The single most common gap.

Phase 17. The archive

[ ] [Gate] Identify the material and the governing agreement before any training use.
[ ] Read the grant for what it actually covers.
- Why. Old agreements grant the right to use a performance that occurred. A model generates performances that did not, and silence is not permission.
[ ] Assess the broad-media argument honestly.
- Why. "In all media now known or hereafter devised" was drafted expansively, and the replica statutes' specificity requirements cut against reading it to cover replication. A rights holder proceeding on that theory is making a litigation bet.
[ ] Check the copyright layer separately.
- Authority. 17 U.S.C. § 106.
- Why. The recording is a distinct work with a distinct owner. A label may license training rights the performer would not have granted, and neither can license the other's interest.
[ ] Run the domicile analysis for deceased performers before treating material as available.
[ ] Seek new consents where material will be used, with compensation. Slow, expensive, and correct.
[ ] Document the decision either way.
[ ] Expect fair use to be asserted for training, and understand its application here is unsettled.
- Authority. 17 U.S.C. § 107.

Phase 18. Failure modes, collected

[ ] The standard likeness release used for a replica.
[ ] A perpetual grant.
[ ] A use description that describes nothing.
[ ] Silence about the data set and the model.
[ ] Silence about assignment.
[ ] No exclusions enumerated.
[ ] One payment for creation and use.
[ ] No representation where the statute requires it.
[ ] A minor consented to without guardian involvement or court approval.
[ ] The domicile analysis skipped for a deceased individual.
[ ] A consent clause buried in a longer agreement where a separate document is required.
[ ] Cleared for the film, not the trailer.
[ ] Legacy archive treated as licensed.
[ ] An employment IP assignment assumed to transfer a persona.
[ ] A departed executive's voice still in the product.
[ ] Output unlabeled where disclosure obligations apply or will by distribution.
[ ] Evidence lost to a takedown before it was preserved.
[ ] The consent presented at the session, with the schedule and the pressure.

Phase 19. Budget, timeline, and staffing

[ ] Allow three to six weeks for a living individual with representation.
- Why. Longer for an estate, where the domicile analysis and chain of title need work. This is the number to give a production schedule and it is longer than producers expect, because the consent is negotiated rather than signed.
[ ] Budget a day or two for the state analysis per campaign.
- Why. Reusable across projects within a year, and worth redoing annually because the statutes are moving.
[ ] Expect two or three rounds on term, exclusions, data destruction, and assignment where the individual is represented.
[ ] Where the individual is unrepresented, expect formalities and advise the producer that a consent obtained without representation is more contestable, not less.
[ ] Assemble the clearance file during production.
- Why. Hours during production, weeks if reconstructed at delivery.
[ ] Assign it to production or brand counsel working from a scoping memorandum.
- Trap. Delegating replica clearance to whoever handles ordinary releases, on the assumption it is the same task at larger scale. It is a different task.
[ ] Spend on the use description and the data terms.
- Why. Those two sections decide whether the consent covers what will actually be done, and a form does not supply them.
[ ] Do not spend on boilerplate.
- Why. Governing law, notices, and severability have not decided a replica dispute.

Phase 20. What to watch

[ ] Federal legislation. Proposals for a national replica right with a licensing framework, platform obligations, and preemption. Do not plan around it; do watch for it, because it would reorganize the clearance analysis entirely.
[ ] Duration caps. More states are likely to impose them, and a consent granted today for a longer term may become unenforceable in part.
[ ] Disclosure obligations, expanding faster than prohibitions and reaching ordinary commercial advertising.
[ ] Platform notice-and-removal regimes specific to synthetic depictions. These will matter more for enforcement than any damages provision.
[ ] Provenance standards being adopted voluntarily and referenced in statute. Building them into delivery specifications now avoids a rework cycle.
- Authority. 17 U.S.C. § 1202.
[ ] The archive litigation. Whether decades-old grants permit training and replica use is the largest unresolved commercial question here, and the first appellate answers will reprice a great deal of library material.
[ ] Foreign regimes. Image and personality rights outside the United States are structured differently, and a domestic clearance does not travel.

Phase 21. When to say no

Not every replica should be made, and the analysis takes an hour.

[ ] Ask whether a real performance would serve.
- Why. Where the synthesis exists to avoid a session fee rather than to accomplish something a performance cannot, the exposure is being incurred for a small saving.
[ ] Ask whether a wholly synthetic persona would serve.
- Why. A voice or face derived from no real individual raises no publicity issue at all. For customer service systems, narration, and many product features, this is the answer and it is frequently cheaper than the consent negotiation.
[ ] Ask whether the individual can practically consent.
- Why. Where the population is large, unreachable, or unwilling, there is no clearance path and the project should be redesigned.
[ ] Ask what happens if the individual later objects.
- Why. A revocation right, a reputational shift, or a change in the individual's circumstances can strand a product built around their persona. Design for the possibility.
[ ] Ask whether the use will still look acceptable in five years.
- Why. Norms here are moving faster than statutes, and a use that is lawful today can be a reputational problem before the term expires.
[ ] Write the decision down either way.
- Why. A documented analysis concluding that the replica is appropriate with the consent in place is worth having if the question is ever litigated, and a documented decision not to proceed is worth more.

Phase 22. The five-minute pre-session check

Before any capture session, confirm all of the following. If any is missing, the session should not proceed.

[ ] The scoping memorandum exists and answers the four threshold questions.
[ ] The state analysis identifies the governing statute and what it requires.
[ ] The consent is executed, not merely drafted.
[ ] It is a standalone document where the statute requires one.
[ ] The use description is an exhibit, not a sentence.
[ ] Exclusions are enumerated.
[ ] The term is stated and within any cap.
[ ] The data set and model provisions address holder, retention, and destruction.
[ ] Assignment is addressed.
[ ] Compensation is split between creation and use.
[ ] Representation is documented where the statute requires it.
[ ] Guardian consent and any court approval are in hand for a minor.
[ ] For a deceased individual, the domicile analysis, the chain of title, and any registration are complete.
[ ] Collective agreement notices have been given.
[ ] The labeling decision has been made.

Fifteen boxes, five minutes, and the session either proceeds on a defensible footing or it does not proceed. Everything in this checklist exists to make that final check possible.

Outcomes. The campaign cleared in three weeks: eighteen-month term, two category exclusions driven by the athlete's other endorsements, ninety-day model destruction with certification, split compensation, and a disclosure line on every spot. The film obtained estate consent naming the two scenes specifically, prohibiting marketing use and model retention beyond delivery, with an on-screen credit; the distributor accepted the clearance file without a holdback. The software company negotiated a consent after the fact with a founder who now had leverage, at a price reflecting it — and the alternative of rebuilding with a voice derived from no real person would have cost less, which is the comparison worth making before deployment rather than after.

Key Authorities at a Glance

| Authority | Proposition | Phase | |---|---|---| | 15 U.S.C. § 1125(a) | False endorsement | 12 | | 15 U.S.C. § 45 | Unfair or deceptive practices; disclosure | 11 | | 17 U.S.C. § 102 | Copyright subject matter; not a persona | 9 | | 17 U.S.C. § 106 | Rights in underlying recordings | 3, 12 | | 17 U.S.C. § 107 | Fair use | 12 | | 17 U.S.C. § 301 | Preemption | 12 | | 17 U.S.C. § 1202 | Copyright management information | 11 | | Cal. Civ. Code § 3344 | Statutory publicity right; voice | 2 | | Cal. Civ. Code § 3344.1 | Post-mortem right; registration | 8 | | N.Y. Civ. Rights Law § 51 | Civil action | 2 | | N.Y. Civ. Rights Law § 50-f | Deceased performers; replicas | 8 | | Tenn. Code § 47-25-1105 | Personal rights protection | 2 | | Ind. Code § 32-36-1-8 | Broad personality attributes | 2 | | Fed. R. Civ. P. 65 | Injunctive relief | 12 | | Fed. R. Evid. 702 | Identifiability testimony | 12 |

The five things people get wrong

One: they use the standard likeness release. A grant of name, image, and likeness in all media in perpetuity is unenforceable as a replica consent in several states and unpersuasive as evidence of informed consent everywhere. Draft to the use instead.

Two: they say nothing about the data. A scanning session produces an asset that outlives the production. A consent that describes the performance and not the data set has licensed the film and left the model unaddressed.

Three: they grant in perpetuity. Duration caps make perpetual replica consents unenforceable in the states that matter, and a term is granted without difficulty when asked for.

Four: they skip the domicile analysis for a deceased individual. Whether a descendible right exists, for how long, who holds it, and whether registration is required all follow the domicile at death, not the place of use. Cal. Civ. Code § 3344.1.

Five: they assume an employment assignment transfers a persona. It does not — a persona is not a work of authorship — and the company that built a product on a departed executive's synthesized voice is resting on a right it never held. 17 U.S.C. § 102. See Clearing and Contracting for Digital Replicas.