Digital Replica Legislation in 2026 Expands Right of Publicity
Weekly Update, Vol. 89.
Key Takeaways
State digital replica laws are moving beyond deepfakes to establish frameworks for commercially authorized digital replicas, primarily by expanding right of publicity protections.
Several states are considering extending post-mortem publicity rights AI protections from the current 10-20 years to as long as 100 years, which could reshape how estates control deceased individuals' digital likenesses.
Digital replica legislation 2026 includes new provisions like takedown requirements for unauthorized content, mandatory legal counsel for replica agreements, and exemptions for college athlete name, image, and likeness deals.
Unlike earlier political and sexual deepfake laws, right of publicity AI regulation is becoming more varied across states, with different approaches to agreements, post-mortem rights, and enforcement mechanisms.
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State lawmakers are shifting their focus from regulating AI deepfakes to establishing comprehensive frameworks for commercially authorized digital replicas. When states first addressed AI two years ago, many quickly enacted political and sexual deepfake legislation. Now, lawmakers are turning to digital replica regulation, primarily by expanding name, image, and likeness protections in right of publicity laws. This year's legislative activity centers on extending post-mortem rights and introducing novel provisions, such as takedown requirements and mandatory legal counsel, that merit close attention.
This year, lawmakers in several states are considering establishing or lengthening “post-mortem” rights for commercially authorized digital replicas. Post-mortem rights prevent the commercial misappropriation of an individual's likeness, allowing their estate to have control over how an individual is portrayed and perceived. Many states recognize the right of publicity, which protects against the commercial misappropriation of a person’s name, image, and likeness. Many states with right of publicity laws also recognize post-mortem rights, but the length of those rights varies across states from 10 to 100 years.
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