What Does the Law Say About Digital Necromancy?

Anne Diamond

When you die, you leave a lot in this world behind. One of the things you leave behind is your data. Some technological concepts aim to raise the dead virtually. The legalities around such acts are ambiguous.


The most striking example of the dead-digitally-walking-among-the-living is probably the existence of virtual holograms. Tupac Shakur’s hologram performed at Coachella in 2012. In 2020, Kim Kardashian was gifted a hologram from her then-husband Kanye West. The hologram was scripted to say that his daughter married "the most, most, most, most, most genius man in the whole world" (the couple has since divorced).[1] 

Road Runner, a documentary film about the chef Anthony Bourdain, made news for using an artificially generated version of Bourdain’s voice that read out three lines of an email. An uneasy group of commentators found the use of said voiceover, which was not originally disclosed, ghoulish. The film’s director Morgan Neville defended the choice of voice over, stating that he had permission from Bourdain’s literary executor and Bourdain’s ex-wife Ottavia Busia. Busia tweeted, “I certainly was NOT the one who said Tony would have been cool with that” and Neville later clarified that AI came up in the initial pitch, which Busia vaguely remembers.[2]

Determining the inheritor of a digital simulacrum is controversial. A compounding factor is that the same people who have the right to grant permission—the heirs—are the same people who financially benefit from granting the rights. Some artists go the extra mile to ensure that their likeness will not be reused, such as Robin Willaims who filed a deed preventing the use of his image or likeness for twenty-five years post-mortem.[3]

Individual celebrities such as Robin Williams are not the only ones concerned. Several states have enacted statutes clarifying “post-humous privacy rights” or an individual’s Right of Publicity, which codify a transferable property right in a celebrity’s name, likeness, and other recognizable personal characteristics to the heirs of their estate and remedies for any unlawful commercial use.

New York’s 2020 post-humous publicity law protects performers and those who become famous through their deaths from having unlawful replicas (including, explicitly, AI replicas) made from their likeness for another’s commercial benefit.[4] But this only applies to certain individuals and for commercial uses. What are the implications for non-commercial necromancy for non-famous individuals?

Chat bots

“Be Right Back,” is a Black Mirror episode about a woman falling in love with an artificial replica of her dead boyfriend. It is also no longer that far-fetched of a scenario. The technology to create such a replica is here—and companies are already exploring the possibilities.

In 2021, Microsoft filed for a patent that would allow a user to “correspond [with] a past or present entity (or a version thereof), such as a friend, a relative, an acquaintance, a celebrity, a fictional character, a historical figure.” [5] Other companies, such as HereAfter AI or Replika, are pursuing the idea of digital recreation of a deceased individual.[6]

The San Fransisco Chronicle ran a story in 2021 about Joshua Barbeau, who used an AI software called Project December to create a replica of his dead fiancée Jessica. Using the texts sent between the two as training data, Joshua simulated a chat bot of Jessica in attempt to find closure through a final conversation. The bot wasn’t perfect; for instance, the bot said it didn’t like magic while the real Jessica did. But the fiancée described the AI’s use of language as similar, stating that Jessica “always liked to undercut powerful statements with a tongue-face emoji or a joke, and so did the bot.” [7]  An AI is not a person, so it will not be able to perfectly mimic one. But with an AI and enough data, a chatbot can come pretty close to the real thing. So, who should get to use this technology?

While many of the apps mentioned above require the user to be closely connected with the deceased, there is no legal mandate. While there are state laws protecting celebrity images and privacy laws for commercial use, there are no protections for a non-commercial replication. There is a tortious right to privacy, but the majority of courts do not allow this right to extend beyond death.[8]  A property right to privacy would extend to one’s heirs, but again, only covers commercial matters.

A very determined stranger, with access to leaked emails, social media posts, and an advanced enough AI, can create a fairly accurate necromantic simulation of you.  It’s questionable how you would hear about it, but the point still stands:  the ghost in the machine is here. And it might use your favorite emojis.


[1] BBC, Kanye West Gives Kim Kardashian Birthday Hologram of Dead Father (Oct. 30, 2020), https://www.bbc.com/news/entertainment-arts-54731382 [https://perma.cc/9JZ9-BRV6] [https://web.archive.org/web/20220104011501/https://www.bbc.com/news/entertainment-arts-54731382].

[2] Helen Rosner, The Ethics of Deep Fake Anthony Bourdain, Nᴇᴡ Yᴏʀᴋᴇʀ (July 17, 2021), https://www.newyorker.com/culture/annals-of-gastronomy/the-ethics-of-a-deepfake-anthony-bourdain-voice [https://perma.cc/VH4H-AQUJ] [https://web.archive.org/web/20221011102012/https://www.newyorker.com/culture/annals-of-gastronomy/the-ethics-of-a-deepfake-anthony-bourdain-voice].

[3] Adrienne Matei, What Should Happen to Our Data When We Die?, N.Y. Tɪᴍᴇs (July 24, 2021) [https://www.nytimes.com/2021/07/24/style/what-should-happen-to-our-data-when-we-die.html] [https://perma.cc/76T3-MED8] [https://web.archive.org/web/20211117043146/https://www.nytimes.com/2021/07/24/style/what-should-happen-to-our-data-when-we-die.html].

[4] Sarah Robertson, New York Post-Mortem Statutory Right of Publicity Set to Take Effect, JD Sᴜᴘʀᴀ (Apr. 26, 2021), https://www.jdsupra.com/legalnews/new-york-post-mortem-statutory-right-of-8632490/ [https://perma.cc/Y9KW-HYQX] [https://web.archive.org/web/20210623050114/https://www.jdsupra.com/legalnews/new-york-post-mortem-statutory-right-of-8632490/].

[5] Clare Duffy, Microsoft Patented a Chatbot that Would Let You Talk to Dead People. It Was Too Disturbing for Production, CNN (Jan. 27, 2021), https://www.cnn.com/2021/01/27/tech/microsoft-chat-bot-patent/index.html [https://perma.cc/6945-58QN] [https://web.archive.org/web/20220703111033/https://www.cnn.com/2021/01/27/tech/microsoft-chat-bot-patent/index.html].

[6] Asa Fitch, Could AI Keep People ‘Alive’ After Death?, Wᴀʟʟ Sᴛ. J. (July 3, 2021), https://www.wsj.com/articles/could-ai-keep-people-alive-after-death-11625317200 [https://perma.cc/7KUB-9DLN] [https://web.archive.org/web/20221024143817/https://www.wsj.com/articles/could-ai-keep-people-alive-after-death-11625317200].

[7] Jason Fagone, The Jessica Simulation: Love and Loss in the Age of A.I., S. F. Cʜʀᴏɴ. (July 23, 2021), [https://www.sfchronicle.com/projects/2021/jessica-simulation-artificial-intelligence/] [https://perma.cc/GMU2-72WK] [https://web.archive.org/web/20221027022257/https://www.sfchronicle.com/projects/2021/jessica-simulation-artificial-intelligence/].

[8] Natalie M. Banta, Death and Privacy in the Digital Age, 94 N.C. L. Rev. 927 (2016), https://scholarship.law.unc.edu/nclr/vol94/iss3/4/ [https://perma.cc/8VK3-4SW3] [https://web.archive.org/web/20220913011016/https://scholarship.law.unc.edu/nclr/vol94/iss3/4/].