Who Gets to Say Yes: Digital Replica Rights and the Contracts That Protect Your Work
The question every entertainment agreement now has to answer sounds deceptively simple. When a person's voice or likeness can be recreated by a machine, who has the right to say yes?
For independent filmmakers, production companies, and content creators, that question stopped being theoretical some time ago. It is showing up in casting, in brand deals, in post, and in the fine print of contracts that were written before any of this was possible. Here is where the law actually stands right now, and what to do about it.
The federal picture is moving quickly
On June 18, the Senate Judiciary Committee unanimously advanced the NO FAKES Act. The bill now sits before the full Senate. If it becomes law, it would create the first federal property right in an individual's voice and visual likeness.
The details matter for anyone who signs talent. The bill proposes statutory damages reaching up to $750,000 per violation, a notice and takedown process modeled on the copyright framework most creators already know, and licensing terms with real limits, roughly ten years for adults and five years for minors. Those rights would also pass to a person's estate for decades after death.
It is not law yet, and it is not guaranteed. A few senators raised free speech concerns, and the road through the full Senate is rarely fast. But the direction is unmistakable, and the smart move is to draft as if this is where things are heading.
California already rewrote the rules
While the federal bill works its way through Congress, California has already changed what your contracts can and cannot do.
As of January 1, 2026, two state laws are fully enforceable. AB 2602 covers living performers, and AB 1836 extends protection to deceased ones. The single most important shift is this: you can no longer rely on broad catch all language to sweep up AI replica rights. The old standby, some version of "all media now known or hereafter devised," does not get you the right to digitally recreate a performer's voice or likeness. Consent now has to be specific, and in many cases it has to be negotiated with the performer's representation.
There is a federal and state tension worth watching here, since a December 2025 executive order pushed for a single national approach to AI regulation. For now, though, if you are shooting in California, you plan around the California rules.
What this actually means for your production
The legal landscape is complicated. The practical response does not have to be. A few principles cover most situations.
Treat digital replica rights as their own asset. They are not a throwaway clause. They have value, and they should be priced, negotiated, and limited like anything else of value in your deal.
Build a simple consent workflow. Get written, specific approval before anyone creates or uses a replica of a performer, and make sure that approval describes what is actually being made.
Audit your templates. If your performer paperwork still leans on the old boilerplate to grab AI rights, it is not protecting you the way you assume.
Flow the obligations downstream. Your VFX house, your dubbing and localization vendors, and your marketing partners all need to be bound by the same consent limits you agreed to with the performer.
For creators specifically: your likeness is something you license, not something you hand over by default. When a brand deal asks for AI generated use of your face or voice, that is a term to negotiate, not skim.
This is not only a big studio problem
It is tempting to read all of this as a concern for major studios with major budgets. The opposite is closer to the truth. The gaps hide in exactly the places where budgets are tight and paperwork gets rushed, in microbudget features, in short shoots, in creator brand deals signed late at night.
The good news is that protecting yourself here is not about hiring the biggest firm in town. It is about having the right documents, drafted correctly, at the moment you need them. That is a right sized problem with a right sized solution.
If you are heading into a production this year and you are not sure your paperwork reflects the law as it stands today, that is worth a conversation before cameras roll, not after.
Iris Jackson, Esq. is the founding Partner of ELLA, Entertainment Lawyers of Los Angeles, a boutique practice serving independent filmmakers, content creators, and production companies. ELLA works on holurly and flat fees with no retainer. You can reach Iris at iris@law-ella.com.
This article is for general information and is not legal advice. For guidance on your specific situation, talk to a qualified attorney.