Whether you’re a Star Wars fan or not, you probably know that the latest (and purportedly the last) installment in the core movie series will soon be in theaters. It’s called, Star Wars: The Rise of Skywalker. While I’m sure the movie has its share of technical and special effects wizardry to herald, one of the most interesting side stories to the movie is the inclusion of Carrie Fisher, reprising her role as Princess Leia, even though Fisher passed away in December of 2016—long before filming and production for this movie was even underway.
I’ve not seen the movie, but from what I hear, Fisher’s appearance is made possible through the use of archival footage shot (but not used) with the previous film, Star Wars: The Last Jedi (for which she was still very much alive). Apparently, both Fisher’s estate and the film’s moviemakers were not interested in reviving her character digitally—mainly, I believe, out of deference to her and her loved ones.
However, we don’t have to look too far afield for an example of a character brought to life digitally. Star Wars prequel Rogue One, set in the years before the original Star Wars movie (which debuted in 1977), resurrected Peter Cushing’s character “Grand Moff Tarkin” even though Cushing himself, died in 1994. The technique used by filmmakers combined both a new “live” actor with digital effects that essentially overdubbed Cushing’s likeness onto the new actor’s face and frame, giving the appearance of Cushing playing the role.
Similarly, James Dean, is about to make his big-screen comeback in the movie, Finding Jack, some 65 years after dying in a car accident at the age of 24. According to Reuters, his appearance will be made possible through the use of old photos, film footage, stand-ins, and digital effects, while his voice will be provided by a new actor.
While ethical debates abound as to whether this approach to film-making is tasteful or not—after all, where does it stop, is a remake of Gone With the Wind starring long-dead Clark Gabel and Vivien Leigh in the offing?—the implications for rights infringement are what interest me and readers of this blog the most. That said, when it comes to “digital” actors, who owns the “rights” to his or her likeness, music, or works?
In life, one’s Personality Rights protect against anyone appropriating “the commercial value of a person's identity by using without consent the person’s name, likeness, or other indicia of identity for purposes of trade.” This standard has been upheld by the Supreme Court and is considered a form of intellectual property.
But what happens when the artist dies? Naturally, the rights to the content he or she produced in life are governed by the various contracts that were in effect at the time of death and/or with the artist’s estate. But what about NEW content, created by digital replicas of deceased individuals—who owns those rights.
The Screen Actors Guild and the American Federation of Television and Radio Artists (SAG-AFTRA) defines “digital replicas” as “intentional, realistic clones produced by any number of technological means—of an individual’s face, body, or voice.” At face value (pun intended), it would be reasonable for one to assume that such rights would simply revert to the individual’s estate—no questions asked—and the cases of Cushing’s role in Rogue One and Dean’s role in Finding Jack, that seems to be the case since their respective estates were involved in granting permission to producers. As with many things dealing with the law and intellectual property, there are a number of gray areas.
Keep an Eye on the Future
With advances in computer technology and advanced digital techniques such as facial mapping, motion capture, and the creation of imaginary actors so realistic they can pass as real-life humans, the issue of digital replicas and intellectual property rights is bound to become a hotbed of controversy in coming years. “Actors and musicians—anyone who relies on his or her likeness or the sound of his or her voice to make a living—will want to pay careful attention to the developing field of digital replicas,” says Eric Ludwig, whose California-based law firm specializes in IP and business litigation around the globe. “Soon, I predict, these digital replicas will be competing with living artists for consumer attention and consumer entertainment dollars. It will behoove artists and their estates to protect their brands and their likenesses explicitly from potential infringement.” Ludwig recommends that any individuals operating in this space work with competent legal counsel to help them navigate this complex and emerging area of IP law.
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Contact Eric Ludwig today for a consultation to discuss whether you need to apply for copyright, patent, and/or trademark protection . . . and how to do it.
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