The recent holographic performance at Coachella Festival by a virtual Tupac got us wondering what the intellectual property implications of such technology are.
If you haven’t seen the video, you should. The rendition is really, really amazing. I should mention that the Japanese have already done this (of course) with Hatsune Miku, a completely virtual pop star. She is, you guessed it, “huge in japan”. I’m not exactly sure how they did the holographic work for her, but it would not seem to present the same legal issue as the Tupac performance, given that she isn’t, nor ever was, real.
For Tupac however, there are a couple of thoughts. One being the right to publicity or personality rights. Unlike most other intellectual property rights, which are all covered by at least some federal legislation, personality rights are determined on a state by state basis. Thus, since the performance was at Coachella, which takes place in California, we would want to look at their law regarding the subject, which, surprise, surprise, is probably the most comprehensive. Appropriately, it is known as the Astaire Celebrity Image Act and was recently amended in 2008. Those statutes can be found here and here, respectively.
The amendment is actually the more important of the two for this subject, because it was exclusively drafted to acknowledge the rights’ descendability to decedents and heirs—an issue that had infamously been denied in Lugosi v. Universal Pictures back in 1979.
In pertinent part, the law says:
(a)(1)Any person who uses a deceased personality’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent from the person or persons specified in subdivision (c), shall be liable for any damages sustained by the person or persons injured as a result thereof.
However, in the next section we are told:
(2)For purposes of this subdivision, a play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, work of political or newsworthy value, or an advertisement or commercial announcement for any of these works, shall not be considered a product, article of merchandise, good, or service if it is fictional or nonfictional entertainment, or a dramatic, literary, or musical work.
Presumably, Tupac’s performance falls under this latter section, thereby removing any chance of liability for using his likeness to perform the songs “Hail Mary” and “Gangsta’s Paradise”.
But looking at the next section changes the stakes:
(3)If a work that is protected under paragraph (2) includes within it a use in connection with a product, article of merchandise, good, or service, this use shall not be exempt under this subdivision, notwithstanding the unprotected use’s inclusion in a work otherwise exempt under this subdivision, if the claimant proves that this use is so directly connected with a product, article of merchandise, good, or service as to constitute an act of advertising, selling, or soliciting purchases of that product, article of merchandise, good, or service by the deceased personality without prior consent from the person or persons specified in subdivision (c).
Seen through the lens of this aspect of the statute, a strong argument could be made that the performance, by its very nature could potentially be somehow covered by all the protections. Isn’t using the late Tupac’s likeness in some way an effort to perpetuate his albums and even, one might say ‘brand’ (remember ‘Thug Life’? The tattoo can clearly be seen on the hologram).
Despite the fact that litigation is highly unlikely in this instance, given that Tupac’s mother Afeni Shakur Davis, who owns the right’s to the music, reportedly gave producer Dr. Dre, the go ahead to make it happen, the phenomenon still portends future potential problems.
As the technology, actually a high tech version of an Elizabethan trick known as Pepper’s ghost, becomes more viable and ubiquitous the possibility that unlicensed producers will use “celebrities” to endorse their products etc becomes more acute…
Conversely, this technology could also be a boon for dead celebrity’s estates—Whitney Houston and Dick Clark come to mind. Dead celebrities are big business, as this excellent 60 minutes segment from 2010 shows.
For more on the practicality of California’s right to publicity, courtesy of Amy Dale Hogue of Pillsbury Winthrop Shaw Pittman LLP, go here.