The rapid development of artificial intelligence (AI) is not only opening up new technical possibilities – it is also raising legal questions. Celebrities, artists and, more generally, creative people whose voices, faces or works could be reconstructed, used or otherwise reused by AI in the future are particularly affected. If you want to ensure that your estate is handled in a certain way, you should include provisions in your will or inheritance contract when planning your estate.

AI can create realistic voice clones, holograms of people or digital avatars – often from publicly available material. 

Personal rights and copyright: Post-mortem use by AI 

This carries the risk that creative individuals will ‘live on’ digitally after their death, without this being in accordance with their wishes. There is also a risk that their heirs will not receive any or only inadequate financial compensation for this, or that they will encounter legal problems when enforcing claims against users of the AI results. Typical examples are:

• Deceased musicians are ‘revived’ with the help of their voices for a new song.

• Actors appear as AI-generated holograms in new films or their voices are used.

• Influencers are used posthumously as virtual avatars for advertising.

AI clauses in wills: What can be regulated?

A will can comprise more than just the distribution of assets. It may also contain provisions relating to copyright and personal rights – particularly with regard to posthumous control over images, voice and works. 

There are two levels to be distinguished here: In a first step, it should be clearly regulated which person(s) from among the heirs are entitled to (post-mortem) personality rights or copyrights. In a second step one may modify how to deal with the personality rights and the copyrights included in the estate with regard to AI. If desired, guidelines for implementation can even be provided to the heirs. This ensures that the heirs actually take the wishes of the testator into account. 

1. Specific assignment of copyright and personality rights

When planning their estate, creative individuals would be wise to consider the allocation of personality rights and copyright in their will. While copyright is part of an estate without specific instructions in a will or inheritance contract and is subject to the general rules of inheritance law, e.g. the distribution of the estate, the (post-mortem) personality rights of a deceased person play a special role. In this case, certain parts are subject to special succession rules in favour of close relatives.

• Copyright: Copyright forms part of the assets of the regular estate and is therefore subject either to the statutory succession rules or, if a last will or inheritance contract has been drawn up, to the provisions of this last will. In order to avoid subsequent problems in the distribution of the estate (e.g. via a community of heirs – ‘Erbengemeinschaft’) or to take into account the long term of copyright protection (70 years p.m.a.), special instructions may be useful (e.g. a legacy solution, possibly combined with the execution of a will).

• Personality rights (‘Allgemeines Persönlichkeitsrecht’): Unlike copyright, personality rights do not fall into the general estate. According to the statutory provisions, only the material and not the immaterial components of personality rights form part of the estate. Only these are therefore subject to the legal succession or succession ordered by last will and testament – unless the intangible components of the general right of personality are explicitly referred to in the last will and testament and a separate arrangement is made. Without such a provision in the will/inheritance contract, the intangible part of the personality right is automatically assigned to the ‘close relatives’ after death. This includes the spouse as well as children and – if these do not exist or no longer exist – the parents (§ 22 S. 4 KUG). The distinction between material and immaterial personality rights can lead to problems in enforcing the law after death. This applies not least in the case of an assignment to several heirs who form a community of heirs under German Law, or to several relatives. In order to avoid the resulting further challenges, it makes sense to clearly name the beneficiary or beneficiaries for personality rights issues in the will. 

2. Specific instructions on AI use 

Specific instructions on AI use in a will are also helpful. These can be implemented as conditions and/or instructions to the executor of the will (‘Testamentsvollstrecker’):

• Alternative 1: Prohibition of AI use  

An explicit clause prohibiting the reproduction of one’s own person by AI is conceivable – e.g. the use of one’s own voice, appearance, movement patterns and gestures.

• Alternative 2: Consent reservation/permission regulation

Those who agree with the use of AI in principle can alternatively provide for a consent reservation. In this case, it also makes sense to state who is allowed to grant permissions – e.g. the heirs, an executor or a foundation. One should also consider how to deal with existing copyright-protected works in relation to AI, e.g. whether these works may be further developed by AI and, if so, whether this is only permitted within certain limits.

Conclusion: Creative people should include KI provisions in their wills

Creative people should not only ask themselves what they want to bequeath, but also how they want to be portrayed after their death or how their works should be used. Case law relating to AI and post-mortem personality rights and copyright is still in its infancy, and many questions are still up in the air due to technical developments in the field of AI. The possibilities offered by AI make explicit regulations in this area increasingly important. A will should therefore also take copyright and personality rights into account and provide tailor-made solutions.