California digital replica consent: informed consent, particularity and deceased personalities
California requires informed consent where a digital replica substitutes for work a performer would otherwise have done in person — and treats vague replica clauses as vulnerable. It applies whether or not you are signatory.
At a glance
- Authority
- State of California
- Jurisdiction
- United States — California
- Effective
- In force
Who this applies to
- Productions using a performer’s digital replica in place of work the performer would otherwise have performed in person
- Non-union as well as signatory productions — the requirement does not depend on a collective agreement
- Any production creating a digital replica of a deceased personality
Dates
| Date | Event |
|---|---|
| In force | Informed-consent and deceased-personality requirements apply |
The substitution test
California’s digital replica requirement is framed around a specific idea: informed consent is required where a performer’s digital replica is intended to be used in place of work the performer would otherwise have performed in person. That framing is worth sitting with, because it is not a rule about AI. It is a rule about labor substitution that AI happens to make cheap.
It means the analysis starts with a counterfactual rather than a technique. Would this work have been performed by the human being if the replica did not exist? A replica of an actor performing lines they never performed is squarely within it. A digital cleanup of a performance the actor did give is further out. A crowd of generated figures who replace background performers who would otherwise have been hired sits in a place many productions have not thought about carefully.
Illinois takes a comparable approach at 765 ILCS 1075/30, requiring informed consent for digital replica use in place of work a performer would otherwise have performed in person, and provides a private right of action for unauthorized commercial use of identity. New York, alongside its synthetic performer disclosure requirement, also requires informed consent for digital replica use. A production shooting in one state, posting in another and airing nationally should expect more than one of these to be live at once.
Why vague replica clauses are vulnerable
Cal. Lab. Code § 927 constrains replica provisions that are not specific. A contract term permitting replica use is vulnerable where the use is not described with particularity and the performer was not represented by counsel or by a union representative in negotiating it.
For producers this is the single most actionable point on the page, and it cuts against the reflex that broader grant language is safer. In the ordinary rights context, breadth is protective: you take the widest grant you can get. Here, breadth is the exposure. A perpetual, all-media, all-purpose replica grant obtained from an unrepresented performer is precisely the instrument the particularity requirement is aimed at.
Representation status therefore becomes a fact you should record. Was the performer represented by counsel or a union representative when the replica term was negotiated? For a signatory production with a union performer that answer is usually straightforward. For a non-union spot with a performer who signed a standard release, it usually is not — and that is exactly the situation where the particularity of the description does the most work.
Deceased personalities
Under Cal. Civ. Code § 3344.1(a)(2)(A)(i), producing or distributing a digital replica of a deceased personality in an expressive work or advertisement, without consent from the party controlling those rights, creates statutory liability in California.
The operational difficulty is rarely the consent itself. It is authority. Post-mortem personality rights move through estates, trusts, licensing companies and, sometimes, several assignments. The signature on the consent may come from someone who genuinely believes they hold the right and does not. A consent from the wrong party is not a partial defense; it is the same position as no consent, with an additional document that shows you thought about it.
Verify the chain from the personality to the consenting party, in writing, before shooting — not before delivery. Ask for the instrument that grants the authority, not an assertion of it. Where the chain is genuinely unclear, that is a rights problem to resolve in prep, and resolving it in prep is an order of magnitude cheaper than resolving it in delivery.
Minors
A minor cannot give effective consent to a digital replica in their own right. The consent must be executed by a parent or legal guardian. In California and New York, court approval of the underlying minor’s contract may additionally be required for a term to bind past majority.
That last point deserves attention on any campaign or title expected to have a long tail. A replica term that runs for years is, by construction, a term that extends past a young performer’s eighteenth birthday. Settle the court-approval question before the instrument is executed, and record the conclusion in the file along with the reasoning — including where the conclusion is that approval was not required.
What you must actually do
Run the substitution test on every replica
Ask whether the work would otherwise have been performed in person. That is the trigger, and it catches background and crowd replication that productions often overlook.
Describe the use with particularity
Breadth is exposure here, not protection. A narrow, checkable description is stronger than a broad grant, especially where the performer was unrepresented.
Record representation status
Note whether the performer was represented by counsel or a union representative when the replica term was negotiated. It bears directly on the durability of the term.
Verify estate authority in writing before shooting
For a deceased personality, obtain the instrument establishing the consenting party’s authority — not just their signature — and keep it with the consent.
Execute minors’ consents through a guardian and settle long terms first
Where the term extends past majority, resolve whether court approval of the underlying contract is required before execution, and record the conclusion.
Check the multi-state picture, not just the shoot state
California, Illinois and New York requirements can all be live on one production depending on where it shoots, posts and airs.
Where the law is still open
These are the live edges — the points where the text stops and drafting practice takes over. Here is what to watch on each, and how careful practitioners are handling it now.
- How far the substitution test reaches into AI-assisted cleanup, timing and continuity work on a performance the performer actually delivered is not settled. Run the counterfactual on each: if the human would have been called back to do it, treat it as substitution.
- What “particularity” requires in a specific description has not been fixed by published guidance, and practitioners draft to different depths. Under § 927 the incentive runs the opposite way to ordinary rights drafting — the narrow description is the durable one.
- How a union-standard consent and a state informed-consent requirement interact where they diverge has not been addressed by any authority. Build to both; on a multi-state production more than one is usually live anyway.
- Post-mortem rights chains are frequently ambiguous as a factual matter. Where the chain is contested, that is a rights problem to resolve before shooting — no amount of documentation fixes a consent from the wrong party.
Questions this entry answers
The same material, in the form it usually arrives — as something that happened on a job, before anyone knew which agreement or statute it belonged to.
- We paid for the AI software. Doesn’t that mean we can use the output?
- A licence from the software vendor settles your rights against the vendor. It does not settle anything with the person whose face or voice is in the output. Those are separate rights held by a separate party, and no tool licence can grant them to you — the performer has to. This is the single most common misunderstanding in the category, because in most other production contexts paying for a thing does resolve the rights question.
- We’re small and non-union. Does any of this reach us?
- Union agreements do not bind you, but the statutes do, and they do not ask whether you are signatory. California and Illinois require informed consent where a digital replica is used in place of work a performer would otherwise have performed in person. New York requires informed consent for replica use and, since June 9, 2026, a conspicuous disclosure when a commercial advertisement depicts a synthetic performer. Advertising platform policies apply to the media buy, and E&O underwriting asks the same questions of everyone. Non-union productions tend to arrive at delivery with the least documentation, not the least obligation.
- The performer is a minor. What changes?
- A minor cannot give effective consent in their own right, so the instrument must be executed by a parent or legal guardian. Where the term of the replica use would run past the minor’s eighteenth birthday, court approval of the underlying contract may additionally be required depending on the jurisdiction — in California and New York this is a live question on any long-tail term. Settle it before the instrument is executed and record the conclusion with its reasoning, including where the conclusion is that approval was not needed.
- Where is the line between AI cleanup and a digital replica?
- It is drawn by the facts and the drafting, and no authority has fixed it. Cleanup, timing adjustment and lip-sync fixes applied to a performance the performer actually delivered sit at one end; lines the performer never spoke sit clearly at the other. California’s test is the most useful one to run in the middle: would this work have been performed by the human being if the tool did not exist? If the answer is that they would have been called back to do it, treat it as substitution. Paper the borderline cases — a rider costs less than the argument about whether one was needed.
- Can we recreate a performer who has died?
- Only with consent from the party that actually controls the post-mortem rights, and establishing who that is is the hard part. Under Cal. Civ. Code § 3344.1(a)(2)(A)(i), producing or distributing a digital replica of a deceased personality in an expressive work or advertisement without that consent creates statutory liability in California. Post-mortem rights move through estates, trusts, licensing companies and sometimes several assignments, and a signature from someone who genuinely believes they hold the right but does not is the same position as no consent at all. Verify the chain in writing, before shooting, by asking for the instrument granting the authority rather than an assertion of it.
Does this apply to your production?
Answer a five-minute intake — contract type, AI usage, airing states, platforms, EU distribution — and ClearFrame returns the requirements that apply to your specific production, with citations and effective dates. Free, one project, no card.
Sources cited by the ClearFrame corpus
- Davis+Gilbert — Digital replica consents under the SAG-AFTRA Commercials Contract
- McDermott — New York’s AI advertising law: synthetic performer disclosure
The sources the rules corpus records for this entry. Follow them through to the primary text.