By Cesar Augusto Taborda Lima
In Brazil, an artist can already stop their voice or face from being recreated by artificial intelligence without authorisation, and claim damages when it happens. The Constitution, the Civil Code and the Copyright Act are enough for that, even though there is no statute specifically on digital replicas. The weak point lies in contracts: releases written for photographs and recordings rarely reach a synthetic voice, and new agreements need to say what may be generated, for how long, at what price, and who decides after the artist’s death.
XXVIII. the following are guaranteed, under the law:
a) protection of individual participation in collective works and of the reproduction of the human image and voice, including in sports activities;
Brazilian Federal Constitution, art. 5, XXVIII, “a” (free translation).
What Brazilian law already protects
The Constitution declares a person’s image inviolable and guarantees compensation for material or moral damage resulting from its violation (art. 5, X). The Civil Code allows a person to prohibit the unauthorised transmission of their words and use of their image for commercial purposes (art. 20) and to demand that the infringement stop, with damages (art. 12). Personality rights cannot be transferred or waived (art. 11); licences are accepted, but, according to the Federal Justice Council, a voluntary limitation may be neither permanent nor general (Statement 4). Where an image is used for commercial purposes without authorisation, the STJ, Brazil’s Superior Court of Justice, awards compensation without proof of loss (Precedent 403).
Performers also hold neighbouring rights under Law 9,610/1998, the Copyright Act: they may authorise or prohibit the fixation, reproduction and any other use of their performances, and that protection “extends to the reproduction of voice and image when associated with their performances” (art. 90, § 2). Even after assigning their economic rights, they keep the moral rights of integrity and attribution (art. 92). The rules on authors’ rights apply to them where relevant (art. 89): agreements are construed restrictively (art. 4), and an assignment covers only forms of use that existed when the contract was signed (art. 49, V). As I see it, an old recording contract that says nothing on the subject can hardly be read as authorising songs the artist never sang.
After death, protection of the image may be sought by the spouse, ascendants or descendants (art. 20, sole paragraph), and that of other personality rights also by relatives up to the fourth degree (art. 12, sole paragraph). Family consent carried weight in the 2023 Volkswagen advertisement that recreated Elis Regina, who died in 1982. CONAR, Brazil’s private advertising self-regulation body, dismissed Complaint 134/23: it found unanimously that there was no disrespect, since the heirs had consented and the singer was shown doing what she did in life, and held by majority that transparency was respected, as the use of the technology was evident.
Bill 2,338/2023, Brazil’s AI bill, passed by the Senate, is awaiting a committee report in the Chamber of Deputies; its text requires the use of people’s image, voice or video by AI systems to respect personality rights (art. 66). It is only a bill.
Removal and platform liability
Article 19 of Brazil’s Internet Civil Framework (Marco Civil da Internet) made platforms liable for third-party content only after they failed to comply with a specific court order. On 26 June 2025, the Federal Supreme Court (STF) declared it partly unconstitutional (Themes 987 and 533), and the Theme 987 holding became final on 17 June 2026. In cases of crime or unlawful acts, the platform is jointly liable unless it shows reasonable doubt as to unlawfulness after qualified diligence; for paid advertisements and boosted posts, its fault is presumed even without notice. Article 19 still governs offences against honour, although removal may be requested out of court. The holding applies from 5 August 2025. A platform that, once notified, keeps up an advertisement with a singer’s fake face and voice risks being liable alongside the advertiser.
The United States and the European Union
In the United States, the matter is largely one of state law. Tennessee’s ELVIS Act, in force since 1 July 2024, protects the voice, including a simulated voice, and imposes liability on anyone who makes a voice or likeness available knowing its use was not authorised. In California, since 2025, a contract clause allowing a digital replica to replace work the performer would otherwise have done in person is unenforceable if it lacks a reasonably specific description of the intended uses and the performer was not represented by a lawyer or a union (Labor Code § 927); a digital replica of a deceased person in an audiovisual work or sound recording requires the consent of the rights holders, with minimum damages of US$10,000 (Civil Code § 3344.1). The federal NO FAKES Act was approved by the Senate Judiciary Committee on 18 June 2026 but is not yet law. SAG-AFTRA, the actors’ union, already had consent and payment rules for digital replicas; its 2026 agreement, ratified in June, also requires consent to use a replica to dub a performance into another language, for productions beginning principal photography after 1 July 2027.
In the European Union, the AI Act requires, since 2 August 2026, anyone who uses AI to generate deep fakes to disclose that the content is artificial; in evidently artistic or fictional works, it is enough to disclose it in a way that does not hamper enjoyment of the work (art. 50(4)). The Digital Omnibus on AI, Regulation (EU) 2026/1744, in force since 27 July 2026, kept that date and, from 2 December 2026, prohibits AI systems that generate realistic intimate or sexually explicit images, video or audio of an identifiable person without that person’s consent. These rules reach companies outside the EU when the output is used there.
Clauses the contract needs
A contract with an artist, label, agency or advertiser should treat the digital replica as a separate subject, distinct from the recording or the shoot, and provide for:
- the purpose of the replica and the works, campaigns or products in which it may appear;
- written consent for each new use, preceded by a description of what will be generated;
- term and territory (absent a written provision, an assignment lasts five years and covers only the country where the contract was signed, art. 49, III and IV);
- payment per use, separate from the recording fee;
- a right to approve the result before release;
- a ban on using session material to train models, unless specifically authorised;
- rules for use after death, their limits and who approves it;
- withdrawal of the replica when the contract ends, secure destruction of the files, and audit.
For professional performers, Law 6,533/1978 prohibits the assignment of authors’ and neighbouring rights arising from the provision of professional services (art. 13) and, for advertising, requires the contract to state the period of use, the product, the media and the markets (art. 14). The Constitution gives performers and their unions and associations the right to monitor the economic exploitation of works (art. 5, XXVIII, “b”), which supports audit rights and the role of agents and unions.
Anyone contracting an artist’s voice or face should assume they may do only what is written. Contract renewals are the moment to separate recording from replica and give each use a price and limits; for brands and producers, specific consent costs little compared with pulling a campaign halfway through.