Digital Replicas, Synthetic Performers, and Consent in Production Agreements

By Hank FasthoffAugust 18, 2026

A producer may own the footage and lack the right to create a new performance from a performer's face or voice. Guild counsel, a distributor, or a buyer may first find the defect during review or a subsequent transfer of the replica files. By then, the performer may hold a stronger negotiating position, the intended use may have expanded beyond the original grant, and the production may have lost the schedule needed for a negotiated solution.

Digital replica review now concerns several legal sources. A guild agreement may govern the performer and project. Statutes in California, New York, Illinois, and Tennessee address separate aspects of consent and identity. Copyright law limits protection for material generated without sufficient human authorship. Each source governs a distinct issue, so a broad name, image, and likeness clause can't replace a focused replica analysis.

Start With the Right Category

The 2026 SAG-AFTRA TV and Theatrical Agreement categorizes digital assets by their method of creation and use. Its memorandum of agreement contains the operative replica and Synthetic terms. An employment based digital replica depicts an identifiable performer and arises from that performer's employment on the project. Under the 2026 terms, the use protections also cover a replica that the producer creates from existing photography without the performer's physical participation.

An independently created digital replica depicts an identifiable natural performer who wasn't employed in the role portrayed by the asset. A Synthetic, the agreement's current term for what it formerly called a synthetic performer, resembles a natural performer without identifying a particular person. No natural person can voice the asset, and no natural performer can have an employment arrangement for the role.

Digital alteration concerns a performance the performer already recorded. That category may involve a replica, but the legal question concerns how far the producer changed the recorded performance.

These definitions bind productions covered by the agreement. A production outside SAG-AFTRA jurisdiction can use the categories as drafting vocabulary, but borrowing the labels doesn't create union rights or duties.

The 2026 Guild Terms Apply on Different Dates

Members ratified the current agreement on June 4, 2026, and its term runs from July 1, 2026 through June 30, 2030. Most of the revised replica provisions apply to performer contracts entered into on or after July 1, 2026 or to covered pictures beginning principal photography on or after that date. One important rule begins later.

For an independently created digital replica, the producer must obtain clear and conspicuous written consent before exploitation. The writing must describe the intended use with reasonable specificity. The producer must also bargain for the use and pay at least the day performer rate for each picture. Residuals apply when the replica's performance would have generated residuals for a natural performer.

Consent to use a replica for dubbing into another language applies only to motion pictures beginning principal photography on or after July 1, 2027. Treating that rule as effective for every current production would overstate the agreement.

Other 2026 provisions took effect earlier. A producer needs an articulable business reason when seeking consent to scan a performer. Access to replica files must remain limited to people with a legitimate business need, and the producer must use commercially reasonable efforts to prevent unauthorized access, use, or copying. The producer also can't repurpose fingerprints, palmprints, or iris scans for unrelated activities. A minor's replica can't depict the minor as nude or engaged in simulated sexual activity.

A performer or background actor's replica can't replace covered services during a strike when the use requires consent and the person could refuse the services. That rule concerns strike use rather than a general right to revoke consent.

Synthetic Casting Requires Time Before Use

The negotiating parties adopted a strong preference for human performance in the 2026 agreement. When a producer reasonably concludes that a Synthetic offers significant additional value over a human performance or digital replica, the producer must give the union written notice before use.

The producer and union then meet within 10 business days to bargain in good faith over the use and any appropriate consideration. If they haven't reached agreement within 15 business days after bargaining begins, and no later than 20 business days after notice, the union may arbitrate the remuneration if the producer proceeds. An award can exceed what a human performer would have received, and the union may direct the payment to a benefit plan.

Customary digital uses involving dangerous acts or nonhuman characters fall outside that process. In your production schedule, you can distinguish those uses from a Synthetic intended for a human role before visual development begins.

Guild Consent Depends on the Use

Consent to create an employment based replica must be clear and conspicuous. The performer separately signs or initials the provision in the employment contract, or signs a separate writing.

Use in the picture for which the performer was hired may require another consent. The producer needs consent for new photography or sound that the performer didn't record unless the result remains substantially as scripted, performed, or recorded. For this purpose, the 2026 agreement limits scripted material to a script provided to the performer on or before the last date the performer performed the scene.

The producer faces the same boundary when altering a recorded performance. An alteration beyond what was substantially scripted, performed, or recorded requires a clear and conspicuous consent that describes the planned change with reasonable specificity.

The producer must treat another project, field, or medium separately. Consent and bargaining must cover that use, and the producer generally can't secure consent at the time of employment. A stated group of projects, such as a specifically identified trilogy, permits consent at the first engagement when each title and planned use receives a reasonably specific description. Even then, consent for another identified title remains valid only if the performer also works on that production or has died before its production begins.

Lifetime consent generally remains valid after death unless the document limits it. If the producer later needs consent from a deceased performer, the producer must seek it first from the authorized representative holding the exclusive rights under applicable law. The union can provide consent when that representative can't be identified or located. A complete clause names these alternatives instead of referring only to an estate.

Broad Consent May Fail Under State Law

California Labor Code Section 927 applies to a new performance fixed on or after January 1, 2025. A provision becomes unenforceable as to that performance when all three statutory conditions exist. First, the replica replaces services the individual otherwise would have performed. Second, the provision lacks a reasonably specific description of the intended uses. Third, the individual had neither qualifying counsel nor representation by a union whose agreement addresses replica use.

The California rule includes a significant exception. The provision remains enforceable despite an omitted description when the use stays consistent with the services contract and with the fundamental character of the recorded or performed material. Related exclusivity grants retain their effect. Section 927 therefore governs a defined class of provisions rather than invalidating every broad replica clause.

New York General Obligations Law Section 5-302 uses a similar three part test for contracts entered into or modified on or after January 1, 2025. It also preserves an undescribed use that remains consistent with the services contract and the fundamental character of the recorded performance.

The Illinois Digital Voice and Likeness Protection Act follows the same general structure, but its text and dates require a separate review. The statute applies to agreements entered into after August 9, 2024, while the current enforceability rule concerns new performances fixed on or after January 1, 2026. Illinois law also defines digital replica differently.

You may need to review more than one statute based on the choice of law, place of performance, performer residence, and planned exploitation. Following the most protective applicable rule usually results in a cleaner consent than drafting separate grants for every state.

Postmortem Rights Require Their Own Search

California Civil Code Section 3344.1 imposes liability for certain unauthorized uses of a deceased personality's digital replica in an expressive audiovisual work or sound recording. The measure is the greater of $10,000 or the right holder's proven damages. Express exceptions include news, comment, criticism, scholarship, satire, parody, certain documentary and biographical uses, incidental uses, and advertising for an exempt work. The right generally lasts 70 years after death, and a successor or licensee must register the claim before recovering for a prohibited use.

New York Civil Rights Law Section 50-f protects a deceased performer's digital replica for 40 years after death. A knowing unauthorized use in an audiovisual work, sound recording, or live musical performance can produce compensatory damages, attributable profits, and other relief. Registration also precedes a cause of action there.

The Tennessee ELVIS Act protects voice along with name, photograph, and likeness. It covers certain knowing unauthorized publications and technologies whose primary purpose or function is producing the photograph, voice, or likeness of an identified person without authorization.

As of August 2026, Texas has no comparable general digital replica right for living performers. Senate Bill 1960 proposed one in 2025, passed the Senate, and remained pending in a House committee when the session ended. Texas disputes can instead involve contract rights, the common law appropriation claim, postmortem rights, or narrower statutes addressing subjects such as artificial intimate material. The related article on the Texas right of publicity covers that framework.

Synthetic Advertising May Require a Disclosure

A separate New York rule governs advertisements. General Business Law Section 396-b requires a conspicuous disclosure when a person dealing in property or services knowingly creates an advertisement containing a synthetic performer as the statute defines that term. The civil penalty is $1,000 for a first violation and $5,000 for a later violation.

The disclosure rule excludes audio advertisements and uses limited to translating a human performer. It also excludes advertising and promotional materials for expressive works when the Synthetic appears consistently with its use in the underlying motion picture, television program, streaming program, documentary, video game, or similar work.

A Complete Consent Separates the Decisions

Your replica exhibit can identify the performer, project, replica category, creation method, and planned use. It can also state the approved media, territory, term, compensation, residual treatment, and producer rights to use the replica in marketing or publicity.

Training and output require separate grants. Your exhibit can identify the material available for training, the permitted model or vendor, the system's retention of that material, and the outputs the production may create. A general replica grant may omit authority to train a model on the underlying voice or image data.

You can use custody terms to set out the storage location, approved vendors, access controls, incident response, return or deletion requirements, and any audit right. Some of those terms exceed the guild baseline, which requires restricted access and commercially reasonable security but doesn't create a general audit or deletion right.

You should draft transfer terms with similar precision. Under the 2026 agreement, a producer remains responsible for replica consent, use, and payment duties after a transfer unless the transferee accepts the obligations in writing, accepts union arbitration, and satisfies the union's review of financial responsibility. The union has 21 days to disapprove financial responsibility and can't unreasonably withhold approval. Your distribution or acquisition agreement can make that process a closing condition when covered replica files form part of the delivery package.

Copyright Protects the Human Contribution

A production needs separate analyses for replica consent and copyright ownership. Permission from a performer doesn't establish copyright in every generated output. Copyright ownership in footage doesn't grant permission to create any replica use the producer chooses.

The Copyright Office concluded in its report on AI copyrightability that purely generated material lacks copyright protection. Human expression perceptible in the output can qualify, as can creative selection, arrangement, or modification. Prompts alone generally don't provide sufficient human control under current technology.

If your production uses a Synthetic, you can document the human contribution to character design, performance direction, editing, sound, and the finished audiovisual work. That record helps buyer's counsel distinguish protected authorship from generated material outside the claim.

Federal Legislation Remains Pending

No general federal digital replica right exists. Current versions of the NO FAKES Act of 2026 appear as Senate Bill 4591 and House Bill 8915. In June 2026, the Senate Judiciary Committee reported Senate Bill 4591 with a substitute, and the bill reached the Senate legislative calendar. Its House companion remains pending.

The proposal may change before enactment, so a producer can't rely on it as current law. For a replica license expected to continue for several years, the parties can include a review clause addressing subsequent federal legislation.

Specific Consent Protects the Production

Digital replica diligence begins with coverage, category, and use. From there, the production can document the performer consent, guild process, state law requirements, data custody, compensation, and transfer terms that apply to the planned exploitation.

That file does more than record permission. It defines the asset a distributor or buyer receives. The related article on film and television chain of title explains the rest of the ownership record, while the article on talent attachments addresses the services agreement that often contains the first replica language.