Article: Governing Generative AI Beyond the Grave

Yonathan A. Arbel (University of Alabama – School of Law) and Alberto Lopez (University of Alabama – School of Law) recently published, Governing Generative AI Beyond the Grave, 2025. Provided below is an Abstract: 

Post-mortem generative emulation (GenEm) has vaulted from science fiction to commercial reality. AI companies now reanimate deceased loved ones as “deadbots,” while studios digitally resurrect long-dead actors in first-run movies. Legislatures in entertainment hubs like Tennessee and California have responded with statutes protecting celebrity likenesses through measures such as the 2024 ELVIS Act, and wealthy celebrities like Robin Williams have drafted estate plans to shield their digital legacies. Yet these solutions ignore—if not reify—a stark divide. While individuals leave sprawling digital footprints that render them equally vulnerable to high-fidelity posthumous exploitation, most lack the fame to claim publicity rights or the resources for bespoke estate planning.

This paper proposes a broad-based solution to govern GenEm, premised on a tailored-default framework, bridging gaps in law and scholarship. Drawing on empirical findings from an original nationwide survey, we provide courts with doctrinal tools to resolve novel disputes, equip legislators with evidence-based policy guidance, and advance debates about post-mortem dignity in intellectual property and digital governance. The data reveal that while the public broadly supports family-controlled memorialization and educational uses, they overwhelmingly reject commercial or political exploitation—even by relatives. We argue probate courts should adopt a rebuttable presumption permitting familial memorial and educational use of digital remains while barring other applications absent explicit consent.

Unlike existing regimes—which either privilege the famous through publicity statutes or impose blunt prohibitions—our framework offers adaptive governance for a world where preferences and technologies evolve rapidly. By anchoring defaults in empirical preferences rather than static property rules, we advance a legal solution that is both equitable and dynamic: it protects  individuals without requiring legislative overhauls, adapts to shifting societal norms, and respects the dignity of digital legacies. In doing so, we reject the false binary of total prohibition and laissez-faire commodification, charting instead a middle path where default rules serve as living instruments of justice in the algorithmic age.

https://lawprofessors.typepad.com/trusts_estates_prof/2025/08/article-governing-generative-ai-beyond-the-grave.html