In this week’s column, California Sports Lawyer® CEO and Managing Attorney Jeremy M. Evans examines why identity is emerging as the next battleground in sports and entertainment, as artificial intelligence reshapes contracts, publicity rights, and the commercial value of a person's voice, likeness, and persona.
The thing with AI is that it can recreate what is human and that is what makes it valuable, enterprising, and alarming.
You can read the full column below. (Past columns can be found, here).
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The essence of a person is their identity. How a person looks, speaks, and thinks. A person’s identity has always been valuable. In Hollywood and sports, there is an increasing call to digitize actors and athletes for their identity to be used currently or at a later date. Artificial intelligence (“AI”) is making identity even more valuable because talent can now be recreated, replicated, and commercialized. Performance is increasingly being replaced (or assisted) by the ability to replicate identity and performance, changing what is negotiated in entertainment, media, and sports agreements.
It is seemingly less costly to create and use a digital asset than a physical asset (or person). That economic reality explains why studios, leagues, and technology companies increasingly seek contractual rights to use a person’s identity beyond the original performance. Collective bargaining agreements, individual contracts, and publicity rights laws all play a role in protecting an actor’s or athlete’s identity unless those rights are specifically licensed. A further limitation is a moral or even a market-based question. Should a person’s persona be able to be licensed completely for future works (whether living or deceased)? Who owns the digital version of a person after the original performance has ended? Will the market accept such artificially generated works?
According to The Hollywood Reporter, a recent dispute between a studio and child actors raised the question of whether a minor could sign away their identity or publicity rights. Although the question in that matter is specific to someone under 18 years old signing a contract and making lifelong decisions, which is important to decide, the broader question is distinguishing between generative artificial intelligence and human identity. More specifically, how such rights and responsibilities are negotiated in contracts.
The dispute is not simply about AI-generated voices. It is about the change of contracts themselves. For decades, sports and entertainment agreements focused on performances and creative works. Increasingly, they are governing something far more personal: identity.
It might not be that an “AI” disclaimer is the answer to all questions regarding content origins. Signing away your identity raises moral and responsibility questions. The questions must be asked: Can someone meaningfully license a digital version of themselves? Should AI rights be perpetual? How should contracts address future technologies that do not yet exist? Are minors capable of consenting to rights that may have lifelong commercial consequences? What protections should exist for voice, likeness, movement, and other identity attributes?
Hollywood and sports are already confronting this shift. Studios are negotiating AI voice and digital replica rights with actors, while SAG-AFTRA has secured contractual protections governing consent and compensation for AI-generated performances. James Earl Jones licensed the future use of his iconic Darth Vader voice, illustrating that a person's voice has become a valuable licensable asset. In sports, NIL agreements, EA Sports' licensing of thousands of college athletes for its video game, athlete avatars, motion capture, and AI-generated content all demonstrate that contracts increasingly govern not only performances, but the commercial use of an individual's identity. The common thread is that voice, likeness, image, and persona are becoming among the most valuable assets in sports and entertainment.
In each case, the negotiation is shifting from “What did you create?” to “Who are you, and who controls your digital identity?” The answers to those questions are what distinguishes between human and AI. The thing with AI is that it can recreate what is human and that is what makes it valuable, enterprising, and alarming. However, without guardrails, it possibly makes humans less valuable in the digital age as physical beings, but possibly more valuable as digital assets. The change is alarming because it diminishes the importance of the finality of life and death and lowers the distinction between what is authentic and what is synthetic.
It is one thing to license future use of a person’s identity or likeness. It is another to license future use of a human’s identity or likeness with the assistance of AI. Contracts are one avenue to regulate the use. It may also take public policy and legislation to insert restrictions. It may also be that the marketplace for ideas and content will self-regulate by people through their purchase power establishing preferences for people and things that are presented in real time and without assistance.
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About Jeremy M. Evans:
Jeremy M. Evans is the Chief Entrepreneur Officer, Founder & Managing Attorney at California Sports Lawyer®, representing entertainment, media, and sports clients in contractual, intellectual property, and dealmaking matters. An award-winning attorney and industry leader, Evans is based in Los Angeles and Newport Beach, California. He can be reached at Jeremy@CSLlegal.com. www.CSLlegal.com.
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