Who Owns the Dead? Digital Replicas, Posthumous Personality Rights, and the Search for a Regulatory Framework

Abstract

The emergence of AI-powered platforms capable of reconstructing the voice, image, and interactive behavior of deceased individuals has generated a significant and largely unresolved legal problem: the posthumous identity market operates in a regulatory vacuum, exploiting a structural gap between the living-person architecture of personality rights doctrine and the commercial logic of an industry that treats death as a business opportunity. This article examines that gap through three lenses. First, it maps the posthumous identity market and the contractual architecture through which platforms claim rights over reconstructed identities. Second, it analyzes the foundational paradox of personality rights doctrine as applied to the deceased under Brazilian law, including the LGPD’s categorical withdrawal from posthumous data and the testament’s inadequacy as a universal governance instrument. Third, it examines three comparative models, the French moral approach (dignity without commerce), the German hybrid framework (dignity meets the market), and the Californian property model (publicity without limits), identifying the design choices each embeds and the lessons each offers for the Brazilian reform process. Drawing on the Civil Code reform commission’s proposals and the emerging ethics literature on digital duplicates, the article proposes a framework of four principles, ante-mortem autonomy, integrity of the posthumous persona, bounded succession, and platform accountability, as the minimum basis for any adequate regulatory response.