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Usually, no. A developer should obtain the actor’s written consent and a license that clearly covers the actor’s likeness, performance data and any digital replica before putting a recognizable face in a game. Unauthorized commercial use can trigger a right-of-publicity claim, contract damages, an injunction or a takedown demand.
Games are expressive works, so a developer may argue that a depiction is protected artistic expression. That defense is highly fact-specific. Courts examine how recognizable the person is, how much original expression the game adds, whether the character is being sold as that person, and whether the actor authorized the particular medium and use. The governing state or country law and the actor’s contract can change the result.
Why an actor’s face can create legal liability
Right-of-publicity laws generally restrict knowing commercial use of another person’s name, voice, signature, photograph or likeness without prior consent. California Civil Code §3344 is a prominent example; common-law claims may apply alongside the statute. Other jurisdictions use different tests, but the recurring question is whether the developer appropriated an identifiable person’s commercial identity.
WIPO’s guidance on image rights warns that unauthorized use of a person’s image, voice or another recognizable characteristic can support damages or an injunction. It recommends that a license spell out territory, term, permitted uses, compensation and advertising rights. Those details matter because a release for one production does not automatically authorize every later use of the performance.
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Commercial use is broader than the game itself
A face may appear in the playable title, a trailer, store artwork, social advertisements, merchandise, localization materials, downloadable content, a sequel or a subscription service. Each use can raise a separate authorization question. A contract that permits an in-game character may not permit endorsement-style advertising or a toy line that makes the actor appear to sponsor the product.
First Amendment protection is not a blanket exemption
Video games receive constitutional protection as expressive works. A developer can therefore argue that a realistic character is part of an original artistic work rather than a commercial endorsement. In California, courts commonly apply a “transformative use” analysis drawn from Comedy III Productions, Inc. v. Gary Saderup, Inc.
The test asks whether the person’s likeness is one of the raw materials from which a substantially creative work is synthesized, or whether the likeness is essentially the work’s central substance. The more the game adds new character, story, setting, satire or visual treatment, the stronger the argument may be. The more the product depends on selling the audience the familiar identity itself, the weaker that argument becomes.
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1Scan for outdated or missing drivers - takes under a minute2Clear out junk files and repair common Windows errors3Fix the driver behind crashes, sound loss and screen glitchesKeller v. Electronic Arts: a realistic recreation can fail
In Keller v. Electronic Arts, the Ninth Circuit held that a realistic recreation of a college quarterback in the activity for which he was known was not transformative as a matter of law. The court wrote:
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“Under the ‘transformative use’ test developed by the California Supreme Court, EA’s use does not qualify for First Amendment protection as a matter of law because it literally recreates Keller in the very setting in which he has achieved renown.”
The court described avatars that matched real players’ height, weight, build, skin tone, hair, jersey number and playing style. The decision is a warning for a game that reproduces an actor’s recognizable face and persona with little creative alteration: calling the product a game does not, by itself, defeat a likeness claim.
Young v. NeoCortext (Ninth Circuit, December 5, 2024)
In Young v. NeoCortext, the Ninth Circuit held that a name-and-likeness claim was not preempted by copyright law. It also said a factfinder could conclude that manipulated clips featuring the plaintiff in roles for which he was known were not sufficiently transformative. The opinion expressly cited Keller’s video-game precedent. The ruling reinforces that the result can turn on the details of the depiction, not on a simple games-versus-movies distinction.
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Permission is safest when it is written for the exact production and future uses the developer intends. A performer’s authorization may be limited to specified contexts. In No Doubt v. Activision Publishing, performers alleged that a game producer exceeded permissions concerning their images. Washington v. … discusses that dispute and the contractual limits that can apply to a performer’s identity in a game. The practical lesson is to read the grant narrowly: consent to act, sing or perform motion capture is not necessarily consent to every later exploitation.
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Terms a release should address
- The actor’s legal identity and the exact face, voice, body performance and other likeness elements being licensed.
- Scanning, photogrammetry, facial capture, motion capture, voice recordings and the data files created from them.
- The character name, story context, degree of resemblance and any derivative avatar or alternate costume.
- Platforms, territories, languages, distribution channels and the license term.
- Sequels, expansions, downloadable content, updates, remasters and archival versions.
- Trailers, demonstrations, store pages, social advertising, public relations and other marketing.
- Merchandise, licensing, sublicensing, localization and use by contractors or platform partners.
- Whether the developer may train an artificial-intelligence system on the data or create a synthetic face or voice.
- Approval procedures, credit, compensation, union obligations, takedown mechanics and post-term deletion or retention.
WIPO identifies territory, term, permitted use and advertising as especially important license terms. A release should state them rather than rely on an assumption that “all media” includes future synthetic-replica technology.
Face scans, voice cloning and AI replicas require separate analysis
A scan or recording creates production data that may be reused long after the original session. Even if an actor agreed to appear in a game, that agreement may not clearly cover training an AI model, generating new dialogue, altering the face, or producing performances the actor never delivered. Treat those activities as distinct rights and obtain express language for them.
Labor and consent concerns
On May 19, 2025, the Associated Press reported that SAG-AFTRA accused Llama Productions, an Epic Games subsidiary, of replacing actors’ work with an AI-generated Darth Vader voice in Fortnite without notice. The report quoted the union: “In a statement, SAG-AFTRA said the union supports the rights of members and their estates to control the use of their digital replicas.” This is a labor and consent signal, not a universal rule for every jurisdiction, but it shows why a developer should check collective-bargaining agreements and union notices before deploying synthetic performances.
Deceased performers
Post-mortem rights may continue after an actor’s death. A California Assembly background paper summarizes California Civil Code §3344.1 as providing a cause of action for unauthorized commercial use of a qualifying deceased personality’s name or likeness for 70 years after death. The statute’s definitions, beneficiaries and later amendments must be checked for the specific case. Estate, union and contractual rights may also apply, and another jurisdiction may provide a different period or no comparable statutory right.
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Evaluate the proposed use before production
Use these factors to decide whether a clearance is essential and how strong a transformative-use defense might be:
| Question | Higher-risk pattern | Lower-risk pattern |
|---|---|---|
| How recognizable is the person? | The face, name, voice, biography and signature mannerisms identify a particular actor. | A fictional design is not reasonably identifiable as one person. |
| What creative changes are added? | The likeness is reproduced with minimal alteration in the setting associated with the person’s fame. | The work substantially changes the character, setting, story and visual treatment. |
| Where does the use appear? | Advertising, merchandise or an endorsement-style placement emphasizes the person’s identity. | The depiction is a limited element of a larger narrative and is not used to imply sponsorship. |
| What did the actor authorize? | The agreement covers acting or capture but is silent on the new medium, advertising or AI. | A signed grant expressly covers the face, voice, data, platforms, territory and stated future uses. |
| How long and where? | Worldwide, perpetual use, sequels and downloadable content are added without clear language. | The term, territory, sequel and expansion rights are stated and paid for. |
| Is a digital replica involved? | Scanning, voice cloning or model training creates new performances without express consent. | The release separately authorizes specified synthetic uses and sets limits and approvals. |
Clearance workflow for a game studio
- Map distribution. List every country or state where the game, updates and marketing will be available. Identify local publicity, privacy, labor, contract, trademark and false-endorsement rules.
- Collect every governing document. Locate the actor’s deal memo, long-form contract, release, motion-capture agreement, agency authorization, collective-bargaining agreement and, if relevant, estate documents.
- Inventory the data. Record what was captured: photographs, scans, facial landmarks, voice, body movement, scripts, improvisations, metadata and derived files. Identify who stores and can access each item.
- Describe each planned use. Write separate descriptions for the playable character, cinematics, trailers, store art, social ads, merchandise, localization, sequels, downloadable content and archival builds.
- Negotiate express digital-replica language. State whether data may train a model, generate new lines, alter the face or voice, or be licensed to another party. Include approval, compensation, security, deletion and post-term rules.
- Check creative alternatives. If permission is unavailable, consider a genuinely fictional design that is not identifiable as the actor. Cosmetic changes alone may not remove recognizability when the overall persona remains the same.
- Document approvals. Keep signed grants, versioned character references, approval emails, territory and term records, and any restrictions on advertising or merchandising.
- Obtain legal clearance before release. Project counsel should assess transformative use, publicity, contract, trademark and false-endorsement exposure in the principal markets. Counsel should also review trailers and store pages, not only the game build.
Common situations and the likely issue
A character merely resembles a famous actor
Similarity alone is not a universal legal test. Risk rises when multiple identifying features—face, voice, name, biography, catchphrases and signature performance—point to one person. A fictional character with a genuinely different identity and substantial creative transformation is easier to defend than a near-copy marketed with the actor’s fame.
The actor played the role during capture
Performance consent does not answer every downstream question. Confirm whether the contract grants the captured face, voice and movement, whether the developer may alter or reuse them, and whether the grant extends to sequels, downloadable content and advertising.
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The game uses the likeness only in a trailer
A trailer is still commercial promotion. A license limited to in-game use may not cover a trailer, store image or social advertisement, and an endorsement-style presentation can create additional false-endorsement risk.
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The actor has died
Check post-mortem publicity statutes, estate authority, the original contract and union rules. In California, the background paper’s 70-year summary for qualifying deceased personalities under §3344.1 is a starting point, not a substitute for checking the operative statute and current amendments.
If a developer already used the face without clear permission
- Pause new marketing, merchandise and synthetic generation while counsel reviews the rights chain.
- Preserve contracts, capture files, approvals, build records and publication dates; do not delete evidence casually.
- Identify every territory, platform and version in which the likeness appears.
- Ask whether the actor has asserted publicity, contract, labor, copyright, trademark or false-endorsement claims.
- Evaluate a negotiated license, edit, replacement character, regional restriction or takedown plan. A rushed global removal can create separate contractual and consumer issues.
Why there is no single yes-or-no rule
The United States has no nationwide right-of-publicity statute that resolves every game dispute. State law differs, and countries outside the United States use their own privacy, personality, image and unfair-competition rules. Even within California, the outcome can depend on the exact contract, the character’s recognizability, the amount of creative transformation and whether the use is in the game or its advertising.
For that reason, “video games are protected speech” and “the actor never signed a release” are both incomplete answers. The lowest-risk path is a written, narrowly negotiated license that anticipates the actual face, voice, performance data, platforms, marketing, sequels and digital-replica technology the studio intends to use.
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