Digital Replica and Synthetic Media Toolkit: Consent, Contracts, and Enforcement

By Casey Scott McKay · 2024-01-05

A convincing synthetic performance can be produced from a few minutes of recorded voice and a handful of photographs, and the legal response has been a fast-moving patchwork rather than a single rule. This toolkit maps the system - the general publicity statutes, the replica-specific provisions layered on top, the federal false endorsement claim that does not depend on state law, and the targeted statutes aimed at explicit and election-related media. It explains why a general name, image, and likeness release is unenforceable as a replica consent in several states, what a valid consent actually contains, and why the data set and the model are assets the standard release never mentions. It covers minors, estates and the domicile question, union agreements, the archive problem, corporate and non-entertainment uses, disclosure obligations, and enforcement against unauthorized replicas.

IP and Technology > Right of Publicity | Toolkit | Published 5 January 2024 - Updated 23 May 2025 | Casey Scott McKay - marksy.us

Summary. A convincing synthetic performance can be produced from a few minutes of recorded voice and a handful of photographs, and the legal response has been a fast-moving patchwork rather than a single rule. This toolkit maps the system — the general publicity statutes, the replica-specific provisions layered on top, the federal false endorsement claim that does not depend on state law, and the targeted statutes aimed at explicit and election-related media. It explains why a general name, image, and likeness release is unenforceable as a replica consent in several states, what a valid consent actually contains, and why the data set and the model are assets the standard release never mentions. It covers minors, estates and the domicile question, union agreements, the archive problem, corporate and non-entertainment uses, disclosure obligations, and enforcement against unauthorized replicas.

Keywords: digital replica definition · voice cloning · state publicity statutes · replica-specific provisions · informed consent · use description · excluded categories · duration caps · separate compensation · data set and model retention · assignment and change of control · minors and estates · union agreements · archive licensing · false endorsement · expressive work carve-outs · disclosure and labeling · platform takedown · identifiability evidence · enforcement sequencing

Start Here

Halloway Creative has four synthetic media questions in one week and they are handled by four different people.

A brand campaign wants a retired athlete's voice, synthesized so copy can be refreshed weekly without new sessions. The athlete has an existing endorsement agreement with a general likeness grant, which the agency believes covers it.

A film needs two scenes completed with a performer who died during production, and nobody has asked where that performer was domiciled at death.

The company's own customer service assistant uses its departed founder's synthesized voice, built from recorded all-hands meetings, with no consent of any kind.

And the archive team has been asked whether decades of recorded narration can be used to train a model, on the theory that the original agreements grant rights "in all media now known or hereafter devised."

Four questions, one technology, and a common error: treating these as clearance problems. They are consent problems, and the document that would have made each lawful is shorter than the agreement the parties already signed.

This toolkit answers three questions.

Which statutes apply, and what do they require? The general publicity statute of the most demanding applicable state, plus any replica-specific provision, plus the federal false endorsement claim.
What does a valid consent contain? Nine elements, of which the standard release has two.
What happens when someone does this without permission? Platform first, then the claims — and preserve before demanding.

If you read only one thing, read Synthetic You. It explains why the cost of infringing changed rather than the category of interest, and why the legal response has taken the shape it has.

What Changed

The right of publicity has protected name, image, and likeness for decades, and voice in several states for nearly as long. What changed is the cost of infringing.

Producing a convincing imitation used to require a skilled impersonator, a production budget, and a decision made by people who could be advised. It now requires a few minutes of recorded audio, a handful of photographs, and a consumer service.

Legislatures responded in two waves. The first addressed the acute harms — sexually explicit synthetic images and election communications — with criminal and civil provisions aimed at specific conduct. The second created a general category, the digital replica, with consent requirements more demanding than the general publicity statutes impose.

The result is layered. Several states now have a general publicity statute, a replica-specific provision, and a common law right, all operating at once, on top of a federal false endorsement claim and a set of targeted criminal statutes.

A producer clearing a synthetic performance therefore faces a general publicity statute, a replica statute, a false endorsement analysis, a union agreement in the entertainment context, and a growing set of disclosure obligations. They do not align.

What a Digital Replica Is

The statutes converge on three elements.

A computer-generated or artificial representation of an individual, produced by technical means rather than by human performance.

Readily identifiable as that individual. Not a generic figure and not a person who happens to resemble someone. The test is whether an ordinary viewer or listener would recognize the individual, and it is satisfied by voice alone in many statutes.

Presented in a manner the individual did not actually perform. The distinguishing element. A recording of what someone said is not a replica; a synthesized rendition of them saying something they never said is.

Generally excluded. Ordinary editing, dubbing, and post-production of an actual performance. Imitation by a human performer. Satire and parody in some statutes, with carve-outs that vary considerably. And representations that are not readily identifiable.

Voice is covered expressly in most of the new statutes, defined to include a synthesized voice readily identifiable as the individual's. This matters because voice cloning is technically easier than visual synthesis and because voice actors have been the population most immediately affected.

How Replica Provisions Differ From General Publicity Law

Consent must be specific. A general release of name, image, and likeness — the standard language in decades of production agreements — is increasingly insufficient. The consent must describe the intended use with particularity: what the replica will do, in what work, for what purpose.

Duration is capped. Several statutes limit the enforceable term of a replica consent, often to a period measured in years, absent a subsequent agreement. Perpetual grants, the norm in general releases, are unenforceable in those states.

Representation is required in some contexts. Where the individual is represented by counsel, a union, or an agent, some statutes condition validity on that representative's involvement, and where the individual is unrepresented additional formalities may apply.

Minors require heightened process. Guardian consent, sometimes court approval, and shorter maximum terms.

Revocation exists in some regimes, particularly where the replica has not yet been created or where the use exceeds what was described.

Remedies are more specific. Statutory damages in some states, injunctive relief, and in a few, attorney fees. Several make platforms liable in defined circumstances for continuing to host after notice.

The State Landscape

There is no uniform act, and the divergence is the practitioner's whole problem.

The general publicity statutes. Cal. Civ. Code § 3344 protects name, voice, signature, photograph, and likeness against knowing use for advertising or solicitation, with statutory minimum damages and fees. N.Y. Civ. Rights Law § 50 creates the misdemeanor and N.Y. Civ. Rights Law § 51 the civil action, both limited to advertising and trade purposes. Tenn. Code § 47-25-1105 is the long-standing personal rights protection statute, amended to reach voice and synthetic reproduction. Ind. Code § 32-36-1-8 is among the broadest, reaching mannerisms and gestures.

The post-mortem provisions. Cal. Civ. Code § 3344.1 with its registration mechanism, and N.Y. Civ. Rights Law § 50-f, which addresses deceased performers and digital replicas expressly.

Where they diverge. Whether the right is limited to commercial use. Whether voice is enumerated. Whether the right is descendible and for how long. Whether registration is required. Whether statutory damages and fees are available. And the scope of the carve-outs for news, commentary, and expressive works.

Choice of law. For a living individual, the domicile usually governs the existence of the right while the place of use governs the conduct, and courts are not consistent. For a deceased individual, domicile at death generally controls — which is Halloway's second question and it is answerable from a death certificate.

The practical rule. A national campaign clears against the most demanding applicable statute, not against the state where the agency sits.

The Federal and Targeted Layers

False endorsement. 15 U.S.C. § 1125(a) reaches any word, term, name, symbol, or device likely to cause confusion as to sponsorship or approval. A synthetic performance suggesting an endorsement is a false endorsement claim, and it has federal jurisdiction, nationwide reach, and a developed body of confusion evidence. It requires likelihood of confusion, which fits an advertisement better than a film — and it does not depend on state descendibility at all, which makes it the most useful claim available to an estate in a non-descendible state.

False advertising under 15 U.S.C. § 1125(a)(1)(B) reaches misrepresentations about the nature or characteristics of goods, including claims implied by a synthetic endorsement.

Copyright's limits. A person does not own the copyright in their own face or voice, so copyright supplies no claim against synthesis. It supplies claims about the training material and the underlying recordings, which belong to whoever owns them — frequently a label or a studio rather than the performer. 17 U.S.C. § 102; 17 U.S.C. § 106.

Preemption. 17 U.S.C. § 301 preempts state rights equivalent to copyright. Publicity claims generally survive because the interest is the persona rather than a fixed work, and a claim framed as being about unauthorized use of a recording invites the argument.

Targeted statutes. Sexually explicit synthetic media, criminal and civil in most states with federal civil liability reaching digitally created depictions. Election communications, requiring disclosure or prohibiting materially deceptive media within a period before an election, with active First Amendment challenges. And impersonation for fraud, which implicates wire fraud and identity theft provisions and which the Federal Trade Commission has pursued as an unfair or deceptive practice under 15 U.S.C. § 45.

Expressive Works and the Limits

News and commentary are carved out of nearly every statute, expressly or by construction.

Transformative use. Several jurisdictions ask whether the work adds significant creative elements so that it becomes primarily the defendant's own expression. A photorealistic replica performing a scripted role is a difficult case for the defendant, because the entire commercial value lies in the accuracy of the likeness.

The Rogers approach applied in some circuits to expressive works asks whether the use has artistic relevance and whether it explicitly misleads. Its scope has narrowed and it applies to uses within expressive works rather than to source-identifying uses.

Parody and satire are carved out expressly in some replica statutes and not others, and the distinction between commenting on the person and using the person to comment on something else does real work.

Biographical and documentary uses are generally protected, and a synthetic recreation of a historical figure sits uneasily between protected depiction and unauthorized replica. Several statutes address it with disclosure requirements rather than prohibitions.

Where the analysis is easiest. Advertising. A synthetic endorsement is a commercial use, no transformative argument is available, and the false endorsement claim runs alongside. Producers occasionally forget that the hardest constitutional questions do not arise in the context where most replicas are actually used.

What a Valid Consent Contains

Nine elements. The standard release has two.

The individual, identified, including any professional name.

What is being captured. The scanning session, the recording session, the photographic reference, and any archival material being used. A consent that does not describe the source has not described what is licensed.

What will be created. A visual replica, a voice model, both, or a combined performance — and whether the model itself is retained, and by whom.

The specific use. The production, the character, the media, the platforms, and the territories. "Marketing and promotional purposes" is not a use description.

What is excluded. Political content, tobacco, alcohol, firearms, adult content, gambling, competing endorsements — stated expressly rather than left to implication.

The duration. A stated term within any statutory cap, with what happens at expiry.

The compensation. For the creation session and for the uses, separately, with any residual or per-use structure.

Credit and attribution, where wanted and where a collective agreement requires it.

Revocation and termination. What triggers it, what survives, and what happens to material already distributed.

Plus two where required. Representation — counsel, agent, or union involvement — and, for a minor, guardian consent with any court approval.

What the standard release has. A grant of name, image, and likeness rights, in all media now known or hereafter devised, in perpetuity, throughout the universe. Unenforceable as a replica consent in several states and unpersuasive as evidence of informed consent everywhere.

The Data Set and the Model

The assets nobody drafts about, and the ones that outlive the production.

Describe the capture. What is recorded, in what format, at what fidelity, over how many sessions.

Address the data set. Who holds it, where it is stored, what security applies, how long it is retained, and what happens on termination or expiry.

Address derived models. Whether a model is created, whether it is retained separately from the outputs, and whether it may generate anything beyond the described use.

Address transfer. Whether the capture and the model may be assigned, sublicensed, or transferred in an acquisition. The term most likely to matter years later and least likely to be negotiated.

Set a destruction date with certification. The most resisted term in the negotiation, because the asset has value beyond the production. The usual compromise is retention for a stated period with a fee attached.

Why this matters. A consent describing the performance and silent about the data has given the production permission to make the film and left the model unaddressed — which is the state of most agreements signed in the last decade.

Minors, Estates, and Collective Agreements

Minors. Guardian consent, court approval where the state requires it, and the shorter maximum terms most statutes impose.

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

Collective agreements. Read the applicable agreement first where the production is covered. Its consent, compensation, and notice requirements are contractual obligations independent of any statute and frequently more demanding. The recurring elements are informed consent describing the intended use, separate compensation for replica creation and for each use, a specified duration, consent required for uses beyond the original production, restrictions on using a replica to replace employment, and post-mortem provisions requiring estate consent.

Employment is not a licence. A persona is not a work of authorship and an employment intellectual property assignment does not transfer a publicity right. 17 U.S.C. § 102. Halloway's third question — the departed founder's voice in the customer service assistant — is a product built on a right the company does not hold.

The Archive

Studios, labels, publishers, and game companies hold decades of material capable of training a model, acquired under agreements written before the technology existed.

What the old agreements say. A grant of the right to use the performance in the production and in advertising for it, frequently with broad media language, and sometimes with a general likeness grant. What they do not say is anything about creating a model or generating new performances.

The argument for permission. Broad media language was drafted expansively for exactly this reason.

The argument against. The grant covers the use of a performance that occurred. A model that generates new performances produces material the performer never rendered, which is outside any reasonable reading — and the replica statutes' specificity requirements reinforce this by treating replication as a distinct act requiring distinct consent.

Where the honest answer lands. For most legacy agreements, silence is not permission. A rights holder proceeding on the broad-media theory is making a litigation bet, and the statutes enacted since have made it worse rather than better.

The copyright layer. The recording is a separate work with a separate owner under 17 U.S.C. § 106, which means a label may hold rights in the recording while the performer holds the publicity interest in the voice. Neither can license the other's, and a training use may require both. Fair use will be asserted for training and its application here is unsettled. 17 U.S.C. § 107.

The estate variable. For deceased performers, consent is required where the state recognizes a descendible right, and the domicile at death governs.

Disclosure, Labeling, and Enforcement

Label synthetic content. Disclosure obligations are expanding in advertising and political communications, provenance metadata standards are being adopted voluntarily and referenced in statute, and voluntary labeling costs nothing while unlabeled synthetic content increasingly reads as concealment. Removal or alteration of provenance information may implicate 17 U.S.C. § 1202.

Preserve before demanding. Screenshots, downloads, URLs, timestamps, and platform identifiers. A takedown removes the evidence along with the content.

Confirm identifiability. The threshold question in every claim, answered with survey evidence and expert testimony on the synthesis. Fed. R. Evid. 702.

Go to the platform first. Speed matters more than forum, most major platforms prohibit unauthorized synthetic depictions in their terms, and where a statute imposes liability for continued hosting after notice, cite it.

Assess the claims in parallel. 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. Fed. R. Civ. P. 65. Irreparable harm is easier to show here than in most commercial cases, because a distributed synthetic depiction cannot be recalled.

Understand the damages problem. Where the individual would not have licensed the use at any price, a royalty measure is awkward and actual damages are speculative — which is why statutory damages and fee-shifting drive the choice of statute and forum.

Identifying the creator is often impossible. Anonymous uploads, offshore hosting, and consumer tools with no logging make enforcement against the distributor frequently the only option.

Halloway's Four Questions, Answered

The athlete's voice. The existing endorsement agreement's general likeness grant does not cover replication. This is a commercial use in every state where the campaign runs, so clear against the most demanding applicable statute, and draft a separate replica consent: the specific campaign and media, a term within any statutory cap, exclusions driven by the athlete's other endorsements, split compensation for the session and for the uses, a model destruction date with certification, and an assignment restriction. Add a disclosure line to every spot. Three weeks, one negotiation, and the agency's assumption that the existing agreement covers it is the most expensive assumption in the file.

The deceased performer. Start with the death certificate. The domicile at death determines whether a descendible right exists, for how long, who holds it, and whether registration is required — and N.Y. Civ. Rights Law § 50-f addresses deceased performers and replicas directly where it applies. Then obtain estate consent with the same specificity a living performer would require: the two scenes named, no marketing use without further consent, no model retention beyond delivery, and an on-screen credit. The collective agreement adds its own requirements.

The founder's voice. A product built on a right the company does not hold. An employment intellectual property assignment does not transfer a publicity right, because a persona is not a work of authorship. 17 U.S.C. § 102. The remediation is a consent negotiated after the fact with a founder who now has leverage, at a price reflecting it — and the alternative, rebuilding the assistant with a voice derived from no real person, should be priced too. That comparison belongs before deployment rather than after.

The archive. Silence is not permission. A grant of the right to use a performance that occurred does not cover generating performances that did not, and the replica statutes' specificity requirements cut against the broad-media reading. Identify the material and the governing agreement, check the copyright layer separately because the recording has its own owner, run the domicile analysis for anyone deceased, and seek new consents with compensation for material the company will actually use. Slow, expensive, and correct — and document the decision either way, because proceeding on the broad-media theory is a litigation bet somebody should make deliberately.

Corporate and Non-Entertainment Uses

The statutes were written with entertainment in mind and the fastest-growing uses are elsewhere.

The synthesized executive. A founder's or executive's voice or likeness in a customer-facing system, a training video, or automated communications. The publicity right belongs to the individual, and the employment relationship does not supply it.

Post-employment is the failure point. State expressly in the consent that it survives departure, because 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.

Customer service agents resembling real employees, or given a persona derived from one. Consent from the individual, plus a disclosure decision because callers increasingly expect to be told.

Marketing using employees. A general model release signed at a photo shoot does not cover synthesis, and the specificity requirements apply regardless of the employment relationship.

Internal training content. Lower risk and not zero, particularly where distributed to customers or partners.

Product features that let users create replicas. A different problem entirely — 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.

The recurring error. These decisions are made by people who have never encountered a publicity right, on the reasonable assumption that an employee's likeness is available to the employer. It is not.

The Clearance File and What Diligence Asks

Every replica is eventually reviewed by an errors and omissions insurer, a distributor's counsel, or an acquirer, and the questions are the same.

The scoping memorandum, answering whose likeness, what will be created, what use, and which states.

The state analysis, naming the most demanding applicable statute and what it requires.

The executed consent with all exhibits.

The representation record, naming who advised the individual.

The capture record. Session dates, what was captured, and where the data resides.

The chain of title for a deceased individual, with domicile, term, holder, and any registration.

Collective agreement provisions and the notices given.

The compensation record.

The labeling decision and where disclosure was applied.

Why it matters commercially. Errors and omissions applications now ask about synthetic content. Delivery requirements increasingly include representations about synthetic performances and compliance with replica statutes. A production that cannot produce this file will be asked to indemnify around the gap or will face a holdback. Assembling it during production costs hours; reconstructing it at delivery costs weeks, under a deadline, with a distributor watching.

What to Watch

Federal legislation. Proposals for a national digital replica right with a licensing framework, platform obligations, and preemption. If one passes, the state-by-state clearance analysis changes fundamentally. Do not plan around it; do watch for it.

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 rather than only political content. Voluntary labeling now is cheaper than retrofitting later.

Platform notice-and-removal regimes specific to synthetic depictions. These will matter more for enforcement than any damages provision, because they operate at the speed the problem requires.

Provenance standards adopted voluntarily and referenced in statute, which belong in delivery specifications now to avoid a rework cycle. 17 U.S.C. § 1202.

The archive litigation. Whether decades-old grants permit training and replica use is the largest unresolved commercial question in this area, 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.

Advising the Individual

The other chair, and the advice is short and different.

Do not sign a general likeness grant for a replica use. The decades-old release language is the document that will be presented, and the statutes now supply a basis to refuse it.

Ask what is being captured and where it will live. A scanning session produces a data set that outlives the production. Who holds it, for how long, and what happens when the production ends are answerable questions that are rarely volunteered.

Negotiate the exclusions, not just the fee. Categories the individual will not permit — political content, adult content, competing endorsements, anything inconsistent with existing agreements — belong in writing, and producers give them cheaply.

Cap the term. Several states will not enforce a perpetual replica consent, and even where one would be enforced, a shorter term with a renewal negotiation is worth more than a larger one-time payment.

Separate the payments, because creation and use are different acts.

Get the data destroyed, with a stated date and certification. The most resisted term and the one worth pressing.

Constrain assignment, because a consent that travels to an acquirer is a consent to a counterparty never evaluated.

Address what happens after death, because the estate will hold whatever right the domicile recognizes and the consent should say whether it survives.

Read the underlying engagement agreement too, because a broad likeness grant elsewhere in the deal can undercut the consent's limits.

Do not sign at the session. The document arrives with the schedule and the pressure, and the only real leverage exists before the capture happens.

A Suggested Reading Path

Before any capture session:

For the underlying right:

For deceased individuals and archives:

Primary Authorities

| Authority | Proposition | |---|---| | 15 U.S.C. § 1125(a) | False endorsement and false advertising | | 15 U.S.C. § 45 | Unfair or deceptive practices; impersonation | | 17 U.S.C. § 102 | Copyright subject matter; not a persona | | 17 U.S.C. § 106 | Rights in the underlying recordings | | 17 U.S.C. § 107 | Fair use; training and commentary | | 17 U.S.C. § 301 | Preemption of equivalent state rights | | 17 U.S.C. § 1202 | Copyright management information; provenance | | Cal. Civ. Code § 3344 | Statutory publicity right; voice | | Cal. Civ. Code § 3344.1 | Post-mortem right; registration | | N.Y. Civ. Rights Law § 50 | Criminal provision | | N.Y. Civ. Rights Law § 51 | Civil action | | N.Y. Civ. Rights Law § 50-f | Deceased performers; digital replicas | | Tenn. Code § 47-25-1105 | Personal rights protection | | Ind. Code § 32-36-1-8 | Broad personality attributes | | Fed. R. Civ. P. 65 | Injunctive relief | | Fed. R. Evid. 702 | Identifiability and synthesis testimony |

Forms and Templates

The License Agreement Template is the closest starting point for a replica consent, and the modifications it needs are substantial: the two grants rather than one, the use description as an exhibit rather than a sentence, the enumerated exclusions, the data set and model provisions with a destruction date, and a term within any statutory cap. What it already handles well — field, territory, assignment, and termination — are the provisions most replica consents omit entirely. The Assignment Agreement Template is the document that does not solve this problem, and knowing why matters: an employment intellectual property assignment does not transfer a publicity right, because a persona is not a work of authorship under 17 U.S.C. § 102. The Cease and Desist Template is the enforcement instrument, and it should cite the platform's own terms alongside the statute, because the platform is usually the faster remedy. The Portfolio Inventory Template is where a rights holder should record every consent obtained, its term, its exclusions, and the location of the associated data set.

Related Toolkits and Checklists

For the general publicity right these provisions layer on top of, the Right of Publicity and Personal Brand Toolkit covers name, image, likeness, and endorsement practice. For deceased individuals and the domicile question, the Estate and Legacy Rights Toolkit. For the training data and generated output questions that run alongside, the AI, Content, and IP Toolkit. And where the capture is used to identify a person rather than to synthesize one, the Biometric and Sensitive Data Toolkit governs a different consent regime with overlapping facts.