Digital Immortality: When Technology Meets Legacy

Artificial intelligence is rapidly changing how we create, distribute and consume content. It is also creating legal questions that would have sounded like science fiction only a few years ago.  

Technology can now recover voices from historic recordings, recreate performances and generate increasingly realistic digital versions of people long after their deaths. What was once the preserve of Hollywood visual effects studios is becoming increasingly accessible to brands, agencies, content creators and technology platforms. 

For businesses operating in the creative, digital and media sectors, the question is no longer whether this technology works, but whether it’s legal, and what regulatory and reputational risks it introduces. 

From preservation to recreation 

Recent projects have demonstrated the remarkable capabilities of modern AI and digital production technologies.

Peter Jackson’s team used machine-learning technology to isolate John Lennon’s voice from historic recordings, enabling the release of what became the final Beatles song.   

Meanwhile, Rogue One: A Star Wars Story saw the digital recreation of actor Peter Cushing, allowing his character Grand Moff Tarkin to appear on screen more than two decades after the actor’s death.  

These projects are often discussed as technological achievements. 

However, the more interesting questions may be legal and commercial rather than technical. 

The Peter Cushing Dispute: the agency impact

The litigation which followed Peter Cushing’s appearance in Rogue One provides an important insight into how courts may approach these issues.

 At first glance, the dispute appeared to concern digital recreation and visual effects technology. In reality, the arguments centred on historic contractual arrangements and the rights associated with Cushing’s likeness. A third party claimed that an earlier agreement restricted how his likeness could be commercially exploited in the future, notwithstanding the permissions obtained from his estate. 

Whilst the claim ultimately failed on the particular legal basis advanced, the case remains significant because it demonstrates that disputes in this area are unlikely to be decided solely by reference to technology. The courts are more likely to focus on issues such as:  

• who has authority to grant permissions; 
• what contractual rights exist; 
• whether historic agreements remain enforceable; and  
• how commercial rights relating to a person’s image, likeness or performance should be interpreted.   

The key lesson is a simple one:

Technology may enable a particular use. Contracts and rights determine whether that use is authorised. 

The UK’s existing legal framework

Unlike some jurisdictions, the UK does not currently recognise a standalone image right or personality right. 

Instead, protection arises from a combination of legal principles, including: 

• copyright;
• performers’ rights;  
• data protection law;  
• privacy rights;  
• contractual protections; and  
• passing off and false endorsement claims.  

This creates a legal landscape which can be highly fact-specific. 

As AI-generated content becomes more sophisticated, businesses may increasingly find themselves navigating multiple legal frameworks simultaneously. 

Regulatory risk: The ASA and CMA 

Legal rights are only part of the picture. 

Regulators are also likely to play an increasingly important role. 

The Advertising Standards Authority (ASA) focuses on whether advertising is misleading, whilst the Competition and Markets Authority (CMA) has a broader remit relating to consumer protection and transparency.

This becomes particularly relevant where digital recreations, synthetic voices or AI-generated content risk creating misleading impressions about endorsement, participation or approval.

For example:  

• Does a digitally recreated individual appear to endorse a product? 
• Could consumers believe a person actively participated in a campaign when they did not? 
• Has the commercial use of AI-generated content been communicated transparently?  

These issues may become increasingly significant as synthetic media becomes more difficult for consumers to distinguish from authentic human-created content. 

Lessons from Rhianna v Topshop 

Although predating the current AI boom, the Rihanna v Topshop litigation remains highly relevant. 

In that case, Rihanna successfully argued that Topshop’s use of her image created a misleading impression that she had approved or endorsed the product. The court’s focus was not simply on the image itself but on how consumers would interpret it. 

That principle translates naturally into the world of digital recreation. When assessing risk, businesses should consider not only whether they possess the necessary permissions, but also how audiences are likely to understand and interpret the content they encounter.  

To read more on AI voice cloning, read our recent article here.

What this means for agencies and brands  

As these technologies become more widely adopted, agencies and brands may need to ask more sophisticated questions than they have in the past. 

Historically, the focus may have been on obtaining permission to use a photograph, recording or performance. 

Today, businesses may also need to consider: 

• whether a likeness can be recreated or modified;  
• whether synthetic versions of an individual are permitted; 
• who is entitled to authorise those uses; 
• what legacy or estate arrangements exist; and 
• whether audiences may be misled by the final output.  

Those considerations become even more important where multiple parties are involved in creating and distributing content, including brands, agencies, production companies and technology providers.

Looking ahead

The discussion around digital immortality is often framed as a debate about artificial intelligence. In reality, it may be more accurately viewed as a debate about legacy. 

Technology is increasingly allowing voices, performances and likenesses to be reused, adapted and extended beyond their original context. Some will see that as preserving a legacy.  Others may regard it as exploiting one. 

Either way, the legal, regulatory and commercial implications are only beginning to emerge. 

For businesses operating in creative, digital and media sectors, understanding those implications now may prove significantly easier than dealing with them after the fact.

Steve Kuncewicz is Partner and Head of Creative, Digital & Media at Glaisyers ETL, advising agencies, brands, rights holders and tech companies on intellectual property, media, marketing, reputation and digital regulation.