By Lauren Berry
- Introduction
Advances in artificial intelligence (“AI”) and digital visual effects now allow filmmakers to render actors as younger versions of themselves, enabling performances that appear to transcend time.[1] Recent films such as Avengers: Endgame[2], Here[3], and Indiana Jones and the Dial of Destiny[4] rely on de-aging technology that draws heavily from actors’ prior performances and copyrighted audiovisual works.[5] These digitally reconstructed portrayals offer powerful creative possibilities, but they also expose unresolved tensions at the core of copyright law.[6] De-aged performances blur the boundary between original expression and digital reproduction, challenging existing doctrine surrounding authorship, fixation, and derivative works.[7] Copyright law, largely built around human-created performances and discrete audiovisual works, is ill-equipped to address this hybrid form of expression.[8] This article argues that de-aging technology reveals significant doctrinal gaps in copyright law and that clearer guidance is necessary to ensure that innovation does not come at the expense of performer autonomy and creative labor.
II. Background: What Is De-Aging Technology?
De-aging technology is a CGI-based visual effects process that digitally alters an actor’s filmed performance in post-production to make the actor appear younger on screen.[9] In recent years, AI systems have been trained on extensive archives of an actor’s prior performances, facial scans, and motion data, allowing filmmakers to digitally reconstruct age, skin texture, and facial movement while preserving core elements of the original performance.[10] Unlike traditional makeup or prosthetics, de-aging relies on computer models that interpolate and reproduce expressive elements drawn from earlier copyrighted works.[11] The resulting performance is neither wholly new, nor a direct copy.[12] Instead, it occupies a hybrid space that raises difficult questions about how copyright law should treat works that depend on prior human expression while presenting as newly fixed audiovisual content.
III. Copyright Fundamentals Implicated by De-Aging
A. Fixation and Originality
Copyright protection attaches to “original works of authorship” that are “fixed in any tangible medium of expression.”[13] A work is considered “fixed” once it is captured on film or exists in a sufficiently stable digital format.[14] Originality requires only a minimal degree of creativity, and even subtle expressive choices such as timing, gesture, or intonation, can satisfy this standard.[15] De-aged performances complicate both requirements. While the final output is fixed in a new audiovisual work, it is generated through extensive reliance on earlier fixed performances.[16] Although visually novel, de-aged portrayals reproduce expressive choices embedded in prior works, calling into question whether the originality requirement is truly satisfied the way the law intended or merely re-presented through new technology.
- Authorship and Ownership
Copyright law presumes human authorship,[17] and courts have recently rejected protection for works created largely by non-human actors.[18] De-aging technology disrupts this framework by producing performances that are generated by software, but grounded in human expression.[19] The digital reconstruction is shaped by directors and visual effects artists, yet it depends fundamentally on the actor’s prior performances.[20] This hybrid process raises difficult questions about who, if anyone, qualifies as the author of a de-aged performance and how ownership should be allocated. [21] Without clearer guidance, performers risk losing autonomy over the expressive elements of their work that are digitally repurposed without new physical participation.
IV. De-Aging as a Derivative Work
The Copyright Act defines a derivative work as one “based upon one or more preexisting works” in which a work is recast, transformed, or adapted.[22] De-aged performances fit comfortably within this definition. They transform archival performances, facial scans, and motion data into a new audiovisual form while preserving recognizable aspects of the original actor’s expression.[23] Unlike traditional remastering or colorization, which alters technical qualities without changing the underlying performance[24], de-aging modifies age-specific facial features and bodily expression.[25] The result is not merely an enhanced copy, but a performance that remains intelligible only because of its reliance on earlier expressive content.
De-aging also shares functional similarities with deepfake technology, which digitally replicates a person’s likeness or voice.[26] While studio de-aging is typically legally authorized and is ultimately done for the purpose of storytelling, the legal distinction is less clear than it appears. In both cases, the technology reuses protected expression to generate a convincing performance without new physical embodiment.[27] This overlap underscores the inadequacy of existing derivative work doctrine to address AI-assisted reconstructions and highlights the need for clearer rules governing the reuse of prior performances in digital media.
V. Fair Use and Transformative Use Analysis
De-aged performances present a close and contested case under the fair use doctrine.[28] The first factor, the purpose and character of the use,[29] turns on whether de-aging is truly transformative. De-aging can enable storytelling across time and preserve narrative continuity, which suggests transformation.[30] Yet it often reproduces an actor’s prior performance with remarkable accuracy, raising doubt as to whether the use adds new expression or merely repackages existing work through technological means.[31] The second fair use factor favors protection, as performances are highly creative works.[32] The third factor weighs against fair use because de-aging relies on extensive archival footage and expressive data to recreate an actor’s recognizable features.[33] Fourth and finally, the market effect is significant. If studios can digitally reuse performances without meaningful consent or compensation, de-aging threatens to substitute for licensed performances and undermine performers’ bargaining power.[34] Taken together, these factors suggest that de-aging occupies a narrow space where transformation and substitution coexist, making it ill-suited for broad protection under fair use.
VI. Overlap and Gaps Between Copyright and Other Regimes
De-aged performances also implicate rights of publicity and contractual agreements, which often govern consent and compensation.[35] While these regimes provide important protections, they cannot fully replace copyright’s role in protecting expressive content.[36] Copyright crucially regulates how prior performances are reproduced and adapted, ensuring continued control over the expressive core of a performance.[37] Without robust copyright guidance, reliance on publicity rights and contracts alone risks fragmented protection and inconsistent outcomes as digital reconstruction becomes increasingly common.[38]
VII. Policy Concerns and Industry Implications
De-aging technology raises pressing concerns about performer autonomy and labor.[39] Actors may have little practical control over how their past performances are reused, modified, or extended beyond the context in which they were originally created.[40] Studios, by contrast, have strong incentives to rely on digital reconstructions that reduce costs and logistical constraints.[41] Without clear rules, these incentives are a threat to the value of true human performance and weaken actors’ negotiating power.[42]
There are also broader labor concerns. As studios accumulate archives of digitized performances, the reuse of this data without ongoing compensation risks undermining residual markets and collective bargaining structures.[43] These dynamics reflect wider anxieties about AI and creative labor: efficiency gains, absent legal guardrails, may come at the expense of actor dignity, consent, and fair compensation.[44] Addressing these concerns requires legal frameworks that recognize the continued human contribution embedded in digital performance.
VIII. Proposals for Reform or Clarification
To address these doctrinal gaps, courts or Congress should prioritize frameworks that require consent and negotiated compensation when studios digitally reuse archival performances.[45] While de-aged performances can be reasonably understood as derivative works tied to an actor’s prior contributions, the more pressing concern is the allocation of economic value.[46] As studios increasingly rely on digitized performance archives to reduce costs, the reuse of copyrighted data without compensation threatens the market for real, human actors and could harm long-standing collective bargaining agreements.[47] A legal framework that conditions AI-assisted production on consent and compensation would preserve innovation while ensuring that performers retain a meaningful stake in the ongoing exploitation of their labor.[48]
Other approaches include expanding the fair use doctrine[49] or creating a new performance “re-use” right.[50] These, however, risk uncertainty and underpayment, especially in an industry with uneven bargaining power. A compensation-based approach reflects the realities of modern filmmaking, recognizes the efficiency and benefits of using AI, and helps ensure that technological progress does not come at the expense of fair pay for the actor/performer.[51]
IX. Conclusion
De-aging technology challenges foundational assumptions of copyright law by blurring the line between original performance and digital reconstruction. Existing doctrines of fixation, authorship, and fair use provide insufficient guidance for AI-assisted performances, leaving performers vulnerable and studios uncertain on how to proceed. Clarifying the treatment of de-aged performances as derivative works offers a path forward that respects both innovation and creative labor. As digital performance becomes more common, copyright law must ensure that technology supports, not undermines, human creativity.
[1] Rustem Vilenkin, How De-aging Technology is Changing Hollywood & the Future of Film-making, Respeecher (Jan. 27, 2021, 7:52 AM), https://www.respeecher.com/blog/de-aging-technology-changing-hollywood-future-film-making.
[2] Matt Grobar, ‘Avengers: Engame’ VFX Supervisor Dan Deleeuw On Crafting Smart Hulk & De-Aging Michael Douglas For Marvel’s Latest, Deadline (Dec. 10, 2019, 3:34 PM), https://deadline.com/2019/12/avengers-endgame-vfx-supervisor-dan-daleeuw-marvel-disney-interview-news-1202805604/.
[3] Benj Edwards, The $50 Million Movie Here De-Aged Tom Hanks With Generative AI, WIRED (Nov. 6, 2024, 7:30 AM), https://www.wired.com/story/here-movie-de-age-tom-hanks-generative-ai/.
[4] Will Bedingfield, How Indiana Jones and the Dial of Destiny De-Aged Harrison Ford, WIRED (July 7, 2023, 7:00 AM), https://www.wired.com/story/indiana-jones-and-the-dial-of-destiny-de-aging-tech/.
[5] Vilenkin, supra note 1.
[6] Negar Bondari, AI, Copyright, and the Law: The Ongoing Battle Over Intellectual Property Rights, USC IP & Tech. Soc’y (Feb. 4, 2025), https://sites.usc.edu/iptls/2025/02/04/ai-copyright-and-the-law-the-ongoing-battle-over-intellectual-property-rights/.
[7] Victor A. Oberting, IV, Generative Artificial Intelligence and Copyright in the Film and Media Industry, 82 Wash. & Lee L. Rev. Online 123, 131, 163, 164 (2024).
[8] Id. at 171.
[9] Vilenkin, supra note 1.
[10] Alius Noreika, How Is De-Aging Done In Movies Or Photos Using AI?, Technology.Org, https://www.technology.org/how-and-why/how-is-ai-de-aging-done-in-movies-photos/ (last visited Jan. 28, 2026).
[11] Id.
[12] Id.
[13] 17 U.S.C. § 102(a).
[14] 17 U.S.C. § 101.
[15] See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).
[16] Noreika, supra note 10.
[17] 17 U.S.C. § 106.
[18] See generally Thaler v. Perlmutter, 687 F. Supp. 3d 140, 149 (D.D.C. 2023), aff’d, 130 F.4th 1039 (D.C. Cir. 2025).
[19] Noreika, supra note 10.
[20] Christopher Holliday, Retroframing the Future: Digital De-aging Technologies in Contemporary Hollywood Cinema, 61 J. Cinema Media Stud. 210, 210-14 (2021).
[21] Rachel Cogley, Digital Humans – A New Era of Film Technology 30–31 (2024) (B.A. thesis, Institute of Art, Design & Technology) (Illustro).
[22] 17 U.S.C. § 101.
[23] Noreika, supra note 10.
[24] Understanding Remastered Movies: A Journey Into Cinematic Revival, Oreate AI (Dec. 24, 2025, 8:31 AM), https://www.oreateai.com/blog/understanding-remastered-movies-a-journey-into-cinematic-revival/9b9e3f9a6a1698ab866cd9716c6f32aa.
[25] Noreika, supra note 10.
[26] Deepfakes and the Rise of Synthetic Media, Cybersecurity Awareness (Dec. 3, 2024), https://cybersecurityawareness.co.uk/resources/blog/deepfakes-and-the-rise-of-synthetic-media/.
[27] Id.; Noreika, supra note 10.
[28] See generally Jonathan Alexander Fisher, “Fair” in the Future? Long-Term Limitations of the Supreme Court’s Use of Incrementalism in Fair Use Jurisprudence, 32 Fordham Intell. Prop., Media & Ent. L.J. 808, 835–39 (2022).
[29] 17 U.S.C. § 107.
[30] Andy Sowards, The Evolution of De-aging Technology in the Film Industry, Andy Sowards (June 1, 2022), https://www.andysowards.com/blog/2022/the-evolution-of-de-aging-technology-in-the-film-industry/.
[31] See Fisher, supra note 28, at 836–37.
[32] Nicky Frankel, Copyright Ownership and Performance Art, Ctr. for Art L. (Apr. 10, 2023), https://itsartlaw.org/art-law/copyright-ownership-and-performance-art/.
[33] See Fisher, supra note 28, at 837–38.
[34] Kathleen Loock, On the realist aesthetics of digital de-aging in contemporary Hollywood cinema, 76 Orbis Litterarum 214, 215–16.
[35] Ahmed Qayyum & Stacy A. Doore, Digital Identity and Control: How AI Replicas Challenge Performance Rights, Ethics & Soc. Impacts Info. & Commc’n Tech. 326, 333–35 (2025).
[36] Kavitha L, Copyright Challenges in the Artificial Intelligence Revolution: Transforming the Film Industry from Script to Screen, 4 Trinity L. Rev. 1, 4–5 (2023).
[37] Id.
[38] See also, The Right of Publicity in the AI Age, Quinn Emanuel (Oct. 2, 2023), https://www.quinnemanuel.com/the-firm/publications/the-right-of-publicity-in-the-ai-age/.
[39] Holliday, supra note 20, at 217–18.
[40] See generally id. at217–221.
[41] Jon Gosier, The Looming Financial Impact of A.I. on Film/TV Production, Medium (Dec. 9, 2022), https://medium.com/filmhedge/the-looming-financial-impact-of-a-i-on-film-tv-production-68d5b118199b.
[42] Christopher Holliday, Growing Pains: Hollywood’s Digital De-aging, MUBI (Jan. 21, 2025), https://mubi.com/en/notebook/posts/in-print-growing-pains-hollywood-s-digital-de-aging.
[43] Kaitlin L. Robidoux & Robert M. Steptoe Jr., AI Impact on Collective Bargaining, Steptoe & Johnson (Aug. 21, 2025), https://www.steptoe-johnson.com/news/ai-impact-on-collective-bargaining/.
[44] Lin Kyi et al., Governance of Generative AI in Creative Work: Consent, Credit, Compensation, and Beyond, CHI ’25: Procs. 2025 CHI Conf. on Hum. Factors Computing Sys. 1, 1, 9 (2025).
[45] Oberting, supra note 7, at 156.
[46] Id.; Novika Ishar, How Generative AI Is Reshaping Labor Negotiations in Hollywood, Romano Law (Nov. 20, 2025), https://www.romanolaw.com/how-generative-ai-is-reshaping-labor-negotiations-in-hollywood/.
[47] Ishar, supra note 46.
[48] Id.
[49] Oberting, supra note 7, at 161–62.
[50] Christian Frank, The use of generative AI in film productions, TaylorWessing (July 7, 2025), https://www.taylorwessing.com/en/interface/2025/media-hot-topics-2025/the-use-of-generative-ai-in-film-productions.
[51] Oberting, supra note 7, at 126, 156.