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Protect a performer by treating a digital replica as a separately licensed asset, not as a by-product of a recording session. Obtain specific, informed written consent before capture, model training, testing or release; identify every intended use, and pay for creation and each exploitation. Union agreements, state publicity laws and cross-border rules can add mandatory safeguards. Copyright may protect a recording or other fixed work, but it does not automatically give a performer control over their voice or identity. A defensible program therefore combines a detailed contract, union and legal review, security and deletion controls, provenance records, and the disclosures required in each market.
What exactly must a performer consent to?
Consent should cover the entire lifecycle of a digital replica. A signature on a general release or on the original performance contract is rarely specific enough to describe scanning, model training, synthetic generation and later campaigns.
Define the replica and source material
- List the assets being captured or supplied: raw footage, isolated voice stems, facial scans, body or motion-capture data, photographs, training datasets, embeddings, model weights and generated outputs.
- Identify the performer, the character or performance, and whether the replica represents the performer as themselves or represents a fictional character.
- Describe the synthetic method in understandable terms, such as voice conversion, text-to-speech, face replacement, body or motion synthesis, or a system that combines several techniques.
Separate creation from every later use
Authorize capture and model creation in one decision, then authorize each exploitation separately. A studio might receive permission to build a model for an internal test but still need a new approval for a finished episode, a dubbed version, advertising, merchandise or a later project. The agreement should say whether internal testing, previews, archival storage and publicity are included or excluded.
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State the media, territory, term, audience, platforms, edits, prompts or script limits, language versions, campaign, project and character. Include whether the replica can be combined with another performer, altered to create new dialogue, or used to imply endorsement. A “for all media, now known or later developed” clause without a reasonably specific description of purpose creates avoidable uncertainty and may be ineffective under local law.
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Address training and reuse directly
Say whether the performer’s data may train a general-purpose model, a project-only model or no model at all. Training permission should not be inferred from permission to use a finished performance. Cover fine-tuning, derivative models, transfer to vendors, retention of intermediate files and use of the model after the original project ends.
How should a digital-replica contract be structured?
A practical agreement uses separate grants, payment triggers and controls so that a producer cannot turn a narrow permission into an unlimited identity license.
| Contract area | What to state | Why it matters |
|---|---|---|
| Capture and creation | What will be scanned or recorded, the capture date and method, permitted personnel, and whether a model may be created. | Creation can expose biometric and performance data even before anything is released. |
| Permitted use | Project or character, scenes or scripts, media, platforms, territory, audience, term, edits and synthetic techniques. | Specificity lets the performer evaluate a real use rather than an abstract possibility. |
| Changes and reuse | Approval or notice for a new project, materially changed scene, new medium, language version, campaign, sequel or sublicensed use. | A changed use may affect meaning, reputation and compensation. |
| Training data | Whether source files, embeddings or weights can train any model; limits on general-purpose training; vendor access. | Training can create uses that are difficult to discover or reverse. |
| Money | Separate amounts for capture, model creation, storage, each release, reuse, localization, advertising, merchandising and any buyout; residuals where applicable. | Payment tied to actual exploitation prevents a one-time fee from silently covering unknown uses. |
| Reporting and audit | Usage reports, accounting periods, records to be retained and a right to audit. | Digital uses can occur across platforms and territories that a performer cannot monitor alone. |
| Security and retention | Access controls, encryption expectations, incident notice, retention period, deletion or return of source files and models. | A replica is valuable identity data and remains risky after a project ends. |
| Suspension and end of term | How future generation is paused, what happens to released material, and when models and backups are deleted. | Stopping new output is different from removing copies already distributed. |
| Law and dispute process | Governing law, venue, confidentiality, injunctive relief and interaction with a collective agreement. | Voice, likeness, post-mortem and free-expression rules vary by jurisdiction. |
Use an annex with concrete examples: an approved script, an approved voice style, a list of forbidden prompts and a sample disclosure. Examples do not replace legal definitions, but they make the intended scope auditable.
What should the approval workflow look like?
Use a written, asset-level workflow that records who approved what, for which project and for how long.
- Inventory the assets. Create a register for recordings, stems, scans, motion data, datasets, embeddings, model weights, prompts and outputs. Give each item an owner, sensitivity rating and retention date.
- Classify the proposed action. Mark it as capture, model training, internal test, release, advertising, merchandising, localization, archival use or a new project. Do not group materially different actions under one checkbox.
- Prepare the intended-use description. Name the character or performance, script or scene, media, territory, term, audience, edits, synthetic method, permitted prompts and any sublicensing.
- Check representation and bargaining coverage. Determine whether the performer is covered by a collective agreement, whether a representative must approve the deal and whether local publicity, biometric or employment rules apply.
- Obtain informed consent before capture or training. Give the performer enough information to understand the technology, risks, payment and future uses. Retain the signed agreement and the version of the intended-use description that was reviewed.
- Set payment events. Record amounts for creation and every permitted exploitation, including reuse, foreign-language versions, advertising, merchandising and residuals. Define payment dates and currency for cross-border work.
- Restrict access. Put source material and models in controlled storage. Keep an access log, prohibit unapproved prompts and require vendors to follow the same limits.
- Approve each deployment. Compare the proposed output with the contract. Escalate a new scene, medium, territory, language, campaign, character or materially changed performance for renewed consent where required.
- Attach provenance and disclosure. Preserve version history and machine-readable provenance where available. Apply a clear viewer-facing label when a deepfake or other synthetic manipulation must be disclosed.
- Close or renew the use. At the end of the term, stop generation, delete or return assets as promised, document backups and obtain a fresh agreement before extending the project.
How does union coverage change the baseline?
For performers represented by SAG-AFTRA, digital simulation rights are mandatory bargaining subjects. The union describes its guardrails as “clear consent, fair compensation, control over performances” (SAG-AFTRA AI resources).
Background performers
SAG-AFTRA’s background-actor guidance says notice of scanning must be given 48 hours in advance, or at hiring when less than 48 hours is available, and consent must be clear and conspicuous. If the producer wants to use the scan for a different project or purpose, consent and payment are required again (SAG-AFTRA background-actor FAQ).
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Recorded-performance reuse
The union’s 2023 statement says terms for digitally simulating a performer must be bargained with the union. Reuse of recorded performances is limited by contract provisions requiring consent and compensation; an old recording is not a blanket authorization for new synthetic scenes (SAG-AFTRA 2023 AI statement).
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Commercials and training
SAG-AFTRA’s 2025 commercials guidance reports mandatory consent before creation, informed consent before use, a reasonably specific intended-use description and payment for digital-replica use. It also prohibits using performers’ data to train AI without union consent (SAG-AFTRA commercials FAQ).
These requirements are a floor for covered work, not a substitute for checking the current agreement, side letters and local law. Producers should involve the union before capture or contracting, and performers should obtain counsel when a deal includes a buyout, broad exclusivity or cross-border distribution.
Does copyright protect a performer’s voice or likeness?
Usually not by itself. Copyright generally protects an original recording, film, photograph, script or other fixed work. It does not automatically create an exclusive property right in the person’s voice, face or identity.
What copyright can cover
A performer may have rights in an authored contribution, while an employer, producer or other rights holder may own a fixed recording under the applicable agreement. An AI-generated output can be copyrightable when a human author determines sufficient expressive elements; supplying prompts alone is not enough, according to the U.S. Copyright Office. That analysis concerns copyright in the output, not automatic control of the performer’s identity.
Why identity protections are still needed
The UK government’s analysis explains that copyright protects the fixed recording or work rather than the person’s voice or identity, leaving gaps for digital-replica harms. The U.S. Copyright Office’s Part 1 report recommends a federal right protecting every individual during life from knowing distribution of an unauthorized digital replica. Its recommendations include a licensable but non-assignable right, damages and injunctions, First Amendment accommodations and no full pre-emption of state laws. Those are recommendations, not a universal rule currently in force.
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Use contract, publicity or personality rights, unfair-competition law, consumer-protection rules and specific biometric statutes as applicable. A claim may also depend on whether a fixed performance was copied, whether the output implies endorsement, and whether the use is newsworthy, artistic, satirical or otherwise protected expression.
What state-law example should contract writers know?
New York General Obligations Law § 5-302 makes certain provisions void when they allow a digital replica to substitute for a performer’s services without a reasonably specific description of intended uses and other statutory safeguards. This is a New York example, not a worldwide standard. Check the law governing the agreement and the place of exploitation before relying on any clause.
State rules also differ on post-mortem rights, heirs, transferability, damages, injunctions and First Amendment exceptions. A contract that works for a living performer in one state may not control a deceased performer’s identity in another country or state.
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What must companies disclose under the EU AI Act?
Article 50 creates transparency duties that complement, rather than replace, consent and payment obligations. From 2 August 2026, providers of systems that generate synthetic audio, images, video or text must mark outputs in a machine-readable format and make them detectable as AI-generated or manipulated. Deployers must disclose deepfakes clearly and distinguishably at first exposure.
Artistic and fictional works
For evidently artistic, creative, satirical or fictional works, the disclosure is limited to acknowledging the existence of generated or manipulated content in an appropriate way. The exception narrows the presentation duty; it does not erase a performer’s contract, publicity or union rights.
Enforcement exposure
The European Commission says fines can reach €15 million or 3% of worldwide turnover, subject to proportionality rules. Determine whether the organization is a provider or deployer, where the service is placed on the market or used, and which output is first exposed to people in the European Union. Keep the machine-readable marker and the human-facing label in the release record.
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Do not assume that a watermark, provenance service or vendor automatically satisfies Article 50. Technical and legal verification is required for the particular system, output and deployment.
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Provenance proves what was approved and how an output was made; it does not prove that the underlying use was authorized. Maintain both the technical trail and the legal record.
- Version history: retain the model or tool version, source-asset identifiers, prompt or script, operator, approval, generation date and final edit.
- Consent record: store the signed agreement, intended-use description, amendments, union approvals and payment confirmations together with the asset register.
- Access controls: limit source files and weights to named personnel, use multifactor authentication and log downloads, exports and vendor transfers.
- Retention schedule: state when raw scans, stems, embeddings, weights, prompts and backups are deleted or returned. Document completion rather than relying on an informal request.
- Incident response: define who is notified if data leaks, an unapproved output is generated or a model is used outside scope. Preserve evidence and pause further generation while the issue is investigated.
- Disclosure artifacts: keep the machine-readable marker, on-screen or audible notice, placement and first-exposure date for each public release.
Deletion may not remove copies already distributed or models held by an authorized vendor’s backups. The contract should distinguish stopping future generation, deleting controlled assets and dealing with released material.
Independent reader supportYour contribution helps us test, update, and keep practical guides available for everyone.What compensation and control terms prevent disputes?
Payment should follow the value and reach of the use. A single session fee can cover physical performance while leaving digital exploitation unpriced.
| Event | Term to define |
|---|---|
| Capture or scan | Session fee, preparation time, data handling and cancellation payment. |
| Model creation | Fee for building and validating the replica, with ownership or license of weights clearly stated. |
| Initial release | Payment for the specified project, media, territory and term. |
| Reuse or extension | New fee and approval for a sequel, campaign, platform, longer term or broader territory. |
| Localization | Payment and approval for each foreign-language voice or materially altered performance. |
| Advertising and merchandising | Separate rates when the replica sells, endorses or appears on products rather than in the underlying work. |
| Residuals or participation | Calculation, reporting frequency and audit rights where a union agreement or contract provides them. |
| Buyout | Exact rights purchased, excluded uses, duration, territory and whether future consent remains necessary. |
Control terms should cover approval of scripts and prompts, a ban on false endorsements, the right to correct a materially misleading output, notice of a proposed changed use and a practical escalation contact. Whether a performer can revoke or suspend a granted use depends on the contract and applicable law; do not promise an unconditional veto unless it is written and enforceable.
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Which risks require specialist legal review?
Obtain jurisdiction-specific advice before signing or deploying when any of these conditions apply:
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- The performer is covered by a collective bargaining agreement or the producer is unsure whether the agreement applies.
- The deal includes a perpetual term, worldwide rights, exclusivity, a broad buyout or post-mortem exploitation.
- Source material contains biometric information, minors’ data, confidential scripts or other regulated information.
- The output will be used in advertising, political communication, endorsements, news-like contexts or a product that could mislead viewers.
- The project crosses borders or will be first exposed to audiences in the European Union after 2 August 2026.
- A performer disputes consent, a vendor retained a model, or an output appears outside the approved scope.
Legal review should test consent language, assignment and licensing limits, remedies, injunctions, privacy and publicity rights, First Amendment or artistic exceptions, union requirements and deletion obligations in every relevant jurisdiction.
What is the practical decision rule for a new AI use?
Do not release a synthetic performance unless you can answer “yes” to all five questions below:
- Do we have a written, informed approval that identifies this exact project, character or performance and the proposed synthetic method?
- Are media, territory, term, edits, language, audience, prompts and sublicensing within the stated scope?
- Are creation, training and this exploitation paid and reported under the contract or applicable union agreement?
- Are source assets and models secured, tracked and scheduled for deletion or return?
- Are provenance records and any required machine-readable and viewer-facing disclosures attached to the release?
If any answer is “no,” pause the use, narrow the proposal or obtain a new approval. A technically convincing replica is not evidence of permission.
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Can a performer withdraw consent after signing a digital-replica agreement?
Only if the agreement or applicable law gives a revocation, suspension or termination right. Many contracts instead limit withdrawal to future uses, material changes or defined breaches, so the performer should negotiate those triggers and the treatment of already released material before signing.
Who owns an AI-generated performance?
Ownership can split among the performer, producer, model developer and other contributors. Copyright may attach to human-authored expressive choices in the output, but that does not automatically transfer control of the performer’s identity; the contract should allocate licenses, model weights and output rights explicitly.
What records are most useful if an unauthorized replica appears online?
Keep the signed consent and every version of the intended-use description, payment and union records, asset and access logs, model and output hashes or identifiers, prompts, provenance metadata, disclosure files and takedown communications. A dated chain of custody helps establish both the authorized scope and the point at which a use exceeded it.
Does an AI disclosure label make an unapproved use lawful?
No. A label addresses transparency, such as the EU Article 50 disclosure duty, but it does not supply performer consent, a publicity license, union approval or payment. Authorization and disclosure should be treated as separate release checks.
What happens to a performer’s rights after death?
Post-mortem publicity and personality rights vary by jurisdiction, including who may control them, how long they last and whether they can be licensed. State the intended post-mortem term and successor process in the contract, then verify the law where the replica will be used.
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