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Usually, no. A developer should obtain the actor’s written consent and a clearly defined likeness or digital-replica license before using a recognizable face. State right-of-publicity laws can permit damages or an injunction when a person’s image, voice or other identifying characteristic is used without authorization. A game’s status as an expressive work can support a First Amendment defense, but it does not create a blanket exemption. Courts examine how recognizable the person is, how much creative transformation the developer adds, where the likeness appears and what the actor’s contract allowed.
Why an actor’s face can create legal exposure
In the United States, right-of-publicity rules generally restrict knowing commercial use of another person’s name, voice, signature, photograph or likeness without prior consent. The details vary by state, and common-law claims may apply alongside statutes. A character does not have to be an exact photograph to create risk: a highly recognizable combination of facial features, hairstyle, body, voice, mannerisms or biography can identify the performer.
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World Intellectual Property Organization guidance warns that unauthorized use of a person’s image, voice or recognizable characteristic can support an injunction or damages. It recommends that a license spell out territory, term, permitted uses, compensation and advertising rights. Those terms matter because a release for one project or medium may not cover a later game, trailer, downloadable character, merchandise line or endorsement-style advertisement.
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Commercial context is important but not decisive. A likeness used inside a paid game, in a store listing, in a trailer, on social media or on merchandise may be treated differently from a fictionalized character in a purely narrative scene. Marketing can create an especially clear argument that the person is being used to sell the product rather than merely as creative material.
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Does a video game’s artistic status protect a likeness?
Video games are expressive works, so a developer can raise First Amendment arguments. California’s transformative-use test asks whether the person’s likeness is raw material from which a substantially creative work is synthesized, or whether the likeness remains the central substance of the work. The test is fact-specific. Calling a project a game, parody or interactive story does not answer the question by itself.
Courts commonly look at the balance between the recognizable identity and the developer’s added expression. A substantially altered character in a new setting, with a different name, appearance, personality and story, may present a stronger constitutional argument than a near-literal recreation of a real performer. A realistic face placed in the same role, setting and activity that made the person famous presents greater risk.
What the leading cases show
| Case or dispute | What the court or record addressed | Practical lesson |
|---|---|---|
| Keller v. Electronic Arts | The Ninth Circuit held that a realistic recreation of a college quarterback in the activity for which he was known was not transformative as a matter of law. The avatar matched details including height, weight, build, skin tone, hair, jersey number and playing style. | A realistic digital double placed in the real person’s signature setting may lose First Amendment protection even when it appears in an expressive game. |
| No Doubt and Washington | Performers challenged uses that allegedly exceeded contractual permissions for their images. California authority treats making a video game as protected expressive activity for anti-SLAPP purposes, but that procedural protection does not decide the merits of a likeness or contract claim. | A performer’s authorization is limited by its wording. Permission for a specified context does not automatically cover another character, platform, advertisement or product. |
| Young v. NeoCortext (Ninth Circuit, Dec. 5, 2024) | The court held that a name-and-likeness claim was not copyright-preempted and said a factfinder could conclude that manipulated clips featuring the plaintiff in roles for which he was known were not sufficiently transformative. The opinion cited Keller as the video-game precedent. | Changing or manipulating footage does not automatically make a recognizable persona free to use; transformation remains a factual inquiry. |
The warning from Keller
The Ninth Circuit stated: “Under the ‘transformative use’ test developed by the California Supreme Court, EA’s use does not qualify for First Amendment protection as a matter of law because it literally recreates Keller in the very setting in which he has achieved renown.” The decision is not a rule that every realistic game character is unlawful. It is a warning that realism, context and the person’s professional identity can combine to defeat a constitutional defense.
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The actor’s signed agreement may be more important than the visual similarity alone. A performer might have authorized acting, motion capture or publicity for one title while retaining control over later uses. No Doubt and Washington illustrate how disputes arise when a producer uses a performer’s image beyond the context the performer accepted.
Before production, the developer should locate the actor’s performance contract, likeness release, collective-bargaining agreement, agency paperwork and, when relevant, estate or successor rights. Read definitions and grant clauses rather than relying on a general statement that the company owns the game. Ownership of game code, footage or a character model does not necessarily equal ownership of the performer’s identity.
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Terms a release should address
- The actor and the exact face, voice, body, name, signature, mannerisms and performance data being licensed.
- Face scans, photographs, motion-capture files, facial-animation data, voice recordings and other captured material.
- The fictional character’s name, biography, story context, appearance and whether the character can be altered in sequels.
- Platforms and distribution channels, including consoles, computers, mobile devices, cloud services and future technical formats.
- Territory, license term, launch window, post-term availability and archival access.
- Sequels, expansions, downloadable content, patches, remasters, ports and localization.
- Trailers, store art, social advertising, livestream promotions, press materials and other marketing separate from in-game use.
- Merchandise, soundtrack or promotional products, sublicensing and use by distributors.
- Compensation, approval procedures, credit, takedown obligations and what happens if the project is cancelled.
- Artificial-intelligence training, voice cloning, facial synthesis and other digital-replica rights stated expressly rather than implied.
WIPO identifies territory, term, permitted use and advertising as core license terms. A production release that says nothing about synthetic media should not be assumed to authorize AI training or a new digital replica.
Do face scans and AI replicas need separate consent?
The safest production rule is to treat scanning, cloning and generative systems as distinct uses that require explicit permission. A face scan can create a reusable biometric-style asset even if the original performance was approved. A voice model or facial model can generate new lines and expressions that the actor never performed. Those capabilities may exceed a conventional motion-capture or acting release.
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1Clear out junk files and repair common Windows errors2Scan for outdated or missing drivers - takes under a minute3Repair Windows errors before they cause bigger problemsOn May 19, 2025, the Associated Press reported that SAG-AFTRA accused Llama Productions, an Epic Games subsidiary, of replacing actors’ work with an AI-generated Darth Vader voice in Fortnite without notice. The report described the allegation and quoted the union supporting members’ and estates’ control of digital replicas. That dispute is a labor and consent signal, not a universal rule for every country or contract, but it shows why a developer should identify synthetic uses before recording begins.
Questions to answer before building a replica
- Will the system train on the actor’s recordings, scans or prior performances?
- Can it generate dialogue, facial expressions or body movements without a new session?
- Who may operate the model, for what project and for how long?
- Can the replica appear in advertising, user-generated content, localization or future titles?
- Can the actor review, reject or remove generated material?
- What security, deletion and post-termination rules apply to the source data and model?
Collective-bargaining terms may impose additional obligations. The contract, applicable labor agreement and law in each distribution territory should be reviewed together.
What if the actor has died?
Death does not necessarily end publicity rights. California Civil Code section 3344.1 is described as protecting qualifying deceased personalities from unauthorized commercial use of their name or likeness for 70 years after death. Eligibility, heirs, registration and the exact statutory requirements matter, and other jurisdictions use different rules. A developer should identify the estate or successor rights holder before using a deceased performer’s face, voice or persona.
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Estate approval should cover the same practical details as a living actor’s license: the specific character, media, territory, term, advertising, merchandising, sequels, downloadable content and synthetic-replica rights. Proposed or later amendments concerning digital replicas can change the analysis, so counsel should verify the operative statute at the time of release.
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Use the following factors together rather than treating any single factor as a safe harbor.
1. Recognizability
Ask whether an ordinary player would identify the actor from the face, voice, body, hairstyle, movement, name, biography or combination of traits. The more immediately recognizable the character, the more valuable a written license becomes.
2. Creative transformation
Document what the developer adds: a new world, altered anatomy, different personality, invented biography, satire, original dialogue and a role unrelated to the actor’s public identity. Transformation is stronger when the likeness is one ingredient in a larger creative work, rather than the main attraction.
3. Context of use
Separate in-game storytelling from trailers, key art, store listings, social advertisements and merchandise. A use that is defensible inside a narrative can create additional exposure when the same face is presented as a selling point.
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4. Contractual scope
Compare every proposed use with the signed grant. Check whether the agreement names the medium, character, platform, territory, term, sequel, downloadable content, advertising and synthetic media. Silence is a reason to obtain clarification, not an assumption of unlimited permission.
5. New technical exploitation
Determine whether scanning, voice cloning, procedural animation or generative AI creates a reusable digital replica. If so, negotiate those rights separately and specify controls.
6. Jurisdiction
List every country and state where the game, advertising and merchandise will be available. The governing law, available remedies and post-mortem protection can differ substantially.
Independent reader supportYour contribution helps us test, update, and keep practical guides available for everyone.A practical clearance process for a game studio
- Inventory the identity. List every real person whose face, voice, name, body, performance, biography or distinctive mannerism appears in the game or marketing.
- Map the distribution. Record planned territories, storefronts, platforms, languages, release dates, expansions, ports and physical products.
- Collect documents. Gather contracts, releases, union agreements, agency letters, approvals and estate records. Preserve signed versions and amendments.
- Define the asset. Describe the scan, recording, model, avatar, voice, animation data and derivative versions with enough precision that both sides know what is licensed.
- Negotiate the grant. State permitted media, territory, term, payment, advertising, sequels, downloadable content, merchandising, sublicensing and archival use. Add explicit AI-training and synthetic-replica language where applicable.
- Separate approvals. Obtain approvals for trailers, store art, social campaigns and endorsement-style placements instead of assuming in-game approval covers them.
- Run a legal review. Have project counsel assess publicity, contract, copyright-preemption, trademark and false-endorsement risks, as well as transformative-use arguments.
- Maintain records. Keep revision histories, territory lists, approval emails, takedown procedures, deletion commitments and post-term obligations with the production files.
Common mistakes and how to correct them
“It is fictional, so it is automatically safe.”
Fictionalization helps only when the overall use is sufficiently transformed. A character that reproduces the actor’s appearance and signature role may still be treated as a commercial appropriation.
“The game is protected expression, so no release is needed.”
Keller shows why that shortcut fails. Expressive status can support a defense, but a court may find the recreation insufficiently transformative.
“The actor approved the performance, so AI use is included.”
A performance release should not be stretched to cover training a model or generating new performances unless those rights are clearly granted. Obtain express consent and define control, duration and permitted outputs.
“Marketing is just another form of gameplay.”
Advertising can present a separate commercial-use theory. Clear trailers, key art, store pages and social ads independently, with their own approval and scope.
“A lawsuit can be handled after launch.”
Publicity claims can seek an injunction, which may force removal of a character, trailer or product while a dispute is pending. Clearance before release is usually less disruptive than rebuilding assets and campaigns.
Bottom line
A developer can sometimes depict a person without a license, but a recognizable actor’s face recreated realistically in a game is a high-risk scenario. Written consent should identify the likeness, performance data, character context, platforms, territory, term, sequels, advertising, merchandising and any AI or synthetic-replica use. First Amendment and transformative-use arguments remain fact-specific, and Keller, No Doubt, Washington and Young show why the contract and the precise presentation matter. Because rights differ by jurisdiction and may survive death, studios should obtain a tailored legal review before recording, modeling or marketing the character.
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