Perf of virtual Tupac at Coachella raises rights questions

The efforts at creating a “holographic” Tupac, a new Marilyn, and a synthetic Elvis either inspire excitement for the future, or sadness over cultural mining of the past.

But before you start imagining a Las Vegas Strip of real-life performers displaced by digital legends, there’s the very present reality of legal hurdles that are a restraint or check on a full spate of 21st century Lazarus projects.

Right of publicity laws have generally gotten stronger for artists in the past two decades, expanding to account for performers’ value after they are deceased. California’s law applies to 70 years after a performer’s death, and several years ago the law was revised to make it clear that it applied retroactively.

What’s more, many more celebrities have become aware of what happens to their reputations after they are long gone, and it’s not all that easy for digital creators to revive stars without going through all sorts of clearances to use underlying source material, like songs or film clips, not to mention the rights from the estate to exploit a likeness.

As Mark Roesler, chairman and CEO of CMG Worldwide, which specializes in representing the estates of the famous, says, “Very seldom is there a one-stop shop. It is a very case- sensitive analysis of who owns what rights.”

The issue isn’t even all that new. In the mid-1990s, when Coke introduced an ad that featured the images of Humphrey Bogart, James Cagney and Louis Armstrong as the real Elton John sang “Just for the Taste,” it inspired a whole bevy of stories — and worries — about what was in store for the future.

The more recent digital Tupac, featured at the Coachella Music Festival in April, took the notion of a revived celebrity to a new level: a legendary figure “performing” an entirely new work. The new Tupac, created by Digital Domain, sang “Hail Mary” but also “What up, Coachella?,” a reference to the event that started three years after his death. Nick Smith, the president of AV Concepts, which staged the image, told MTV that the technology will allow them to “take people that haven’t done concerts before or perform music they haven’t sung and digitally recreate it.”

The intent of post-mortem rights of publicity laws was to allow estates to enjoy the benefits of the commercial exploitation of an artist’s likeness, a response to the bonanza of merchandising of things like Groucho T-shirts and Marilyn Monroe trinkets, or ads featuring legends of the past. But California’s right of publicity law exempts plays, books, magazines, newspapers, musical compositions, film, radio or television programs, with an eye to the First Amendment. So what is to stop a brazen group of producers from casting a digitally recreated Elizabeth Taylor in a cameo role, even without the permission of her estate?

Jonathan Faber, attorney and founder of licensing agency Luminary Group, says that perhaps the common law right of publicity, which exists simultaneously, would help protect estates. There also is the argument that, even though such an appearance is not a product or ad, it is still “commercial exploitation,” as California’s law also limits the extent to which even media that falls under the exemptions can exploit their creations. The 1977 Supreme Court decision in Zacchini v. Scripps-Howard Broadcasting Co. held that the First Amendment did not protect a TV station when it broadcast a complete human cannonball act, as the broadcast undercut the money the performer could have made.

“I submit that there should not be any difficulty in determining that a digitally recreated musician being made to perform, or a digitally recreated actor being made to act, should absolutely require permission based on that person’s right of publicity,” Faber said. “If that notion is not defensible, one would have to wonder about the long term efficacy of the right of publicity as a distinct doctrine.” He predicts licensing opportunities, and litigation when the uses happen without permission.

Other issues involve where a star kept as an official residence at the time of his or her death, as it affects whether a state has a port-mortem right of publicity. New York, for instance, does not, an issue that has arisen with the Marilyn Monroe estate. And in Nevada, there is a post mortem right of publicity, too, but it doesn’t apply to “an attempt to portray, imitate, simulate or impersonate a person in a live performance.”

Given the expense of creating digital celebrities, companies like Digital Domain have chosen to avoid the headache of threats of legal action. It recently entered a deal with Core Media Group and Elvis Presley Enterprises to make a virtual Elvis for a variety of appearances. Gary Hovey, executive VP of Elvis Presley Enterprises, said the whole idea of such electronic recreations is “just a new medium.” The future of digital personas, he adds, “depends on what gets created. This is the beginning of something new.”

As protective as estates may be over their loved ones, what can’t be forgotten is that even in death, there is a need for a celebrity to stay in the public eye. In other words, better to work with them than against them.

As Faber says, “The genie is out of the bottle. You can’t pretend it doesn’t exist.”

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