Who Owns You? AI, Performer Rights and the Gap in Australian Law
Voices are being cloned. Faces are being replicated. Physical performances have already been used to train AI systems, and studios have licensed large film libraries to AI companies for exactly that purpose. None of that is seriously in dispute. The open question is what Australian law does about it, and the honest answer is less than most performers assume.
Richard Mitry was interviewed by Chelsea Bonner, Founder and CEO of ICON Management, for Inside Film (IF) magazine on precisely this question. What follows expands on that discussion.
Copyright protects things. It does not protect you.
The starting point is a distinction that is easy to miss and expensive to misunderstand.
Australian copyright protects works and subject matter other than works. It protects a sound recording, a film, a screenplay, a song. What it does not do is protect a person. Your voice, your face, your accent, your physical presence and the way you time a line are not, in themselves, things over which you hold copyright. They are attributes of a human being rather than fixed expressions of an idea.
The practical consequence is significant. A synthetic performance that sounds like you or looks like you is not necessarily infringing copyright simply because it reminds an audience of you. The law asks whether a protected work was reproduced. It does not really ask whether a person's identity was appropriated. That is a gap, and a clone can pass straight through it.
Why generative AI is different from copying
The Copyright Act 1968 is a statute built for a world of reproduction. It was designed to stop people making unauthorised copies. That framing worked reasonably well for decades, because unauthorised use almost always involved a copy sitting somewhere that could be pointed at.
Generative systems do not necessarily work that way. A model can be trained on thousands of hours of a performer's work and then produce something new. The output competes with the performer in the market without ever reproducing a single recording in the sense the Act contemplates. It is not that the performer's work was taken. It is that the performer's manner, style and identity were learned and then reconstituted.
Copyright law has some tools that touch the edges of this problem. Performers' rights under Part XIA of the Act, moral rights, passing off, and the misleading and deceptive conduct provisions of the Australian Consumer Law can each be relevant in the right factual circumstances, particularly where a synthetic performance is presented in a way that suggests endorsement or authorship. But none of these were designed for this, and none of them amounts to a right in your own voice or likeness. They are workarounds, and workarounds are expensive to litigate and uncertain in outcome.
What has changed, and what has not
The picture is not static, and it would be wrong to suggest nothing is moving.
In October 2025 the Attorney-General ruled out allowing AI companies to train on Australian creators' work for free. That is a meaningful development and it points in the right direction. But it is important to be precise about what it addresses. It goes to remuneration when a person's work is used to train a model. It is not a right to your own voice or your own face.
That distinction matters because remuneration for training is an upstream question about inputs. The problem performers are actually facing is a downstream question about outputs, namely a synthetic version of them appearing in the market and taking work that would otherwise have been theirs. The system is improving. The part performers need most still does not exist.
Right of publicity?
The United States is not a perfect comparator, but the contrast is instructive.
Many US states recognise a right of publicity, which is a proprietary or quasi-proprietary right in a person's name, image, voice and likeness. Tennessee has gone further and legislated specifically for AI voice and likeness cloning. The US Congress is debating the NO FAKES Act. Other jurisdictions are moving in the same direction.
Australia has no equivalent. We rely on passing off and consumer law, both of which require a plaintiff to establish reputation and misrepresentation, and neither of which fits comfortably around a working actor whose face is recognisable but whose name is not a household brand.
It is worth naming what this means in practice. When high profile American performers have protected or monetised their own likeness, they have done so with two advantages. The first is a legal framework that recognises the right. The second is the financial capacity to enforce it. Most Australian performers have neither.
This is not only an actors' issue
There is a tendency to frame AI replication as a problem for talent, and to treat everyone else in the production ecosystem as a bystander. That is a mistake.
Every job on a set exists because a human being stood in front of a camera and performed. Remove the human performer and the casting director has no one to cast. The cinematographer has no face to light. The director has no human performance to shape. The same is true of the sound recordist, the gaffer, the costume designer, and the hair and makeup artist. The exposure is not confined to the person whose name appears on the call sheet.
Crew, directors and casting professionals therefore have a direct interest in how these clauses are negotiated, even where they are not the counterparty to the agreement in question.
Until the law catches up, the contract is the fence
This is the practical heart of the matter. Where statutory protection is thin, contractual protection is not one option among several. It is the only real protection available.
That places a great deal of weight on drafting, and on reading agreements properly before they are signed.
Language to identify and interrogate
The following formulations should prompt scrutiny rather than a signature.
Grants of rights in "all media now known or later invented". This is the clause that most reliably captures technologies that did not exist at the time of signing.
"In perpetuity" and "irrevocable". Together with the above, these remove any practical ability to revisit the arrangement when circumstances change.
Any reference to a digital double, a digital replica, a synthetic performance, a voice model, a scan, or biometric data. These should never be buried in a general grant of rights. They warrant a separate consent and a separate fee.
Broad definitions of "Materials" or "Contribution" that extend to raw footage, outtakes, rehearsal recordings and audition or self tape material. Audition material is frequently overlooked and is a genuine exposure.
Assignments or licences in favour of third parties, affiliates or successors without any limit on onward use.
Three principles worth negotiating for
Contractual protection can be reduced to three ideas, and they are easier to hold in mind than a list of clause numbers.
Consent - No replication of voice, face or performance without prior written approval, given specifically and not by way of a general grant buried in a rights clause.
Compensation - If a replica is created or used, the performer is paid for it, and paid on a basis that reflects the scope and duration of the use rather than a nominal buyout.
Control - A genuine right to decline, and where possible a right to limit the contexts in which a replica may appear.
AI should be a front of mind issue in negotiation rather than an afterthought raised once the deal is otherwise agreed.
What you can do now
For actors and agents, read every contract and obtain advice before signing rather than after. Look specifically for the words AI, digital replica, likeness, scan and future technologies. Read the rights clause, the definitions, and any consent schedule, because the operative language is very often in the definitions rather than the clause you were told to look at.
For casting directors, put express limits on how audition and self tape material may be used and retained.
For directors and showrunners, treat the AI replacement proposition as something to be interrogated rather than accepted.
For crew, understand that your work is connected to this question even where your name does not appear on the contract.
You can read the Inside Film (IF) magazine piece, "Who Owns You? Australian Screen in the Age of AI", here: https://www.facebook.com/bodyimagewarrior/posts/who-owns-youi-wrote-for-if-magazine-last-month-i-thought-id-share-the-story-here/1649842403808606/
This article is general information and is not legal advice. It does not take into account your particular circumstances. You should obtain advice specific to your situation before acting.