Digital Replica Rights in Comparative Perspective

Technological advances in artificial intelligence have made it easier to create realistic digital replicas of both living and deceased people. Growing public concerns have led to a corresponding increase in responsive legislation. Such laws usually aim to address non-consensual digital replicas of human image and voice. Interestingly, new digital replica rights (which often cover only realistic images and voices) have proliferated in some jurisdictions that already recognise rights of publicity or personality (which cover a wider range of indicia). This seminar comparatively explores and evaluates such digital replica rights in the United States. Relevant U.S. legislation includes the recent bipartisan federal bill (NO FAKES Act of 2025) and several state laws. 

The analytical starting point is identifying those who hold relevant interests in digital replicas. Drawing on the need to balance their sometimes conflicting interests, a series of evaluative factors is proposed for consideration when drafting or consulting on laws addressing digital replicas. When these factors are applied to the current patchwork of applicable laws in England and Wales, several gaps and limitations are identified. Next, recent U.S. legislation is comparatively assessed, with a particular focus on proposed federal legislation and post-mortem applicability. This analysis examines several questions: Are the identified limitations in the U.K. similarly present in U.S. legislation – or would the latter raise other issues? Should digital replica rights be protected as property rights rather than via privacy and data protection? Such comparative analyses and the proposed evaluative approach could provide useful contributions in the current global context. Other jurisdictions are also considering digital replica rights and rights of publicity and personality – all of which should be informed by both interests and ethics.

Dr S. Che Ekaratne is a Lecturer in Law at the University of Reading and an attorney admitted to practice in New York State. Her research focuses on intellectual property law, entertainment law, and intersections with other private law. Che has published research on topics including copyright, publicity rights, and laws relevant to deepfakes. Her research has been cited in court judgments and has generated interdisciplinary interest. She has advised several entities, including media and a national law commission, on issues such as image rights and post-mortem intellectual property. Che is a graduate of Yale University, Harvard Law School, the University of Bristol, and the University of Canterbury. She also studied law at the University of Oxford as a Yale undergraduate. Before entering academia, Che’s work as an attorney at an American law firm included submissions to the U.S. Supreme Court.