The average age of the top touring performers is 52.6 years old, Tim Ingham revealed in a Rolling Stone column last week. His data is based on Pollstar’s midyear tally of the 100 highest grossing acts in the world. Led by 72-year-old Elton John, who grossed $82.6 million between Nov. 22 2018 and May 22 2019, the top 10 also includes Metallica, with an average age of 55, Fleetwood Mac (72), Kiss (64), Trans-Siberian Orchestra (56) and Bob Seger (74), among younger turks like Pink (39), Justin Timberlake (38), Ed Sheeran (28) and Travis Scott (28).
The reality of our aging rock stars bring into question the very future of concerts, a topic attorney Ken Abdo has thought about quite a bit, as he lays out in an op-ed written for Variety.
“Rock n’ roll is here to stay/ It will never die.” — Danny & the Juniors, 1958
I was born in the 1950s, along with much of the Baby Boom generation. That decade also birthed rock ‘n’ roll, a then-new music genre that powered electrifying live concerts. In 2019, as some of the earliest rock ‘n’ roll artists are observing 60th career anniversaries, you don’t need a stethoscope to see that the genre is not only long past its prime as the dominant economic force in the music industry, it’s in decline.
Supported by fuzzy math, I believe rock ‘n’ roll will die around 2060.
In the early 2000s, digital recording technologies and channels of distribution (i.e. downloads and then streaming) reshaped the music industry. Before then, rock ‘n’ roll was created by instrument-playing musicians and vocalists whose performances were not enhanced by computer programs and were sold as physical record albums.
The youngest Boomers, who were around 35 years old in 2000, were leaving their music-discovery years. To keep that audience engaged and revenues flowing in the wake of declining record sales, many of those boomer-era artists continue to tour, but obviously, they won’t in 2060 — in fact, see-them-before-they-die (or even “see them before we die”) is a major reason why many of those artists continue to draw well. While certain rock artists will be remembered as Bach and Beethoven are today, most of these acts will be lost to history.
However, as it so often does, technology is throwing a wrench into this theory by resurrecting rock ‘n’ roll’s greatest icons — as holograms.
While it’s still in a relatively early phase, holograms can protect (and perhaps immortalize) artists’ legacies, keep audiences in venues, introduce younger generations to the artists, provide continued protection of artists’ intellectual property and create revenue for artists’ estates. To me, it is the next billion-dollar music business.
A handful of hologram production companies are competing for market dominance. Hologram technology, including two-dimensional video projections and HD video (a hi-definition version of the 100+ year old Pepper’s Ghost Technique), is protected by patents that are the subject of infringements suits. As the technology advances, holograms will become even more real and entertaining to audiences.
Despite arguments from purists that holograms are creepy and compromise the integrity of the artist’s work, they’re here to stay. After an unprecedented debut hologram tour in support of a new album of previously unreleased music, the image of Roy Orbison will next be touring one a double-headline bill with the image of Buddy Holly, who died some 61 years ago.
As a music lawyer, I can’t help but address the licenses required to enable holograms concerts (to avoid intellectual property infringement claims) and artist estate-planning needs. Because artists’ estates, recording companies, music publishing companies and other rights holders all benefit, I believe they will cooperate to make hologram concerts happen.
Holograms require licenses to copyright protected material including music compositions, music recordings, photography, film/video and choreography. Copyrights registered under the U.S. Copyright Act are protected for 70 years from the author’s death. Trademark licenses, for use of band names and logos for performance, promotion and merchandise sales, are also required. Unlike copyrights, federal trademark protection can be extended provided the trademark is used. Otherwise, the trademark is lost. Therefore, through hologram concerts, these trademark protections are preserved.
A license to exploit an artist’s right to publicity (name and likeness/image) is also required for a hologram. State law controls these rights; 23 states recognize an after-death right for an estate to control the commercial exploitation of an artist’s name and likeness/image. Some states recognize some sort of right and others do not recognize the right at all. Notably, California recognizes the post-death right for 70 years past the death of the person, while New York (somewhat inexplicably) does not recognize a post-death right of publicity.
Rock ‘n’ roll hologram concerts are here to stay… and so is the legacy of the artists that are mindful of how to protect and control their intellectual property with a thoughtful estate plan. This requires artists to address their intentions and plan accordingly with wills, trusts and other directives. Otherwise, the authority as to how the artist’s intellectual property and legacy is to be directed and managed, including whether or what kind of hologram concerts may be created, will fall into arbitrary hands.
Although the greats of rock ‘n’ roll will perish, their creative works and memory will live on in ways they may never have imagined.
Ken Abdo is a music lawyer and partner in the national law firm Fox Rothschild LLP. His practice focuses on advising music artists and music artist estates.