Hologram Images and the Entertainment Industry: New Legal Territory?

• Citation: Vol. 10 No. 2
• Publication year: 2014

Washington Journal of Law, Technology and Arts Volume 10, Issue 2 Fall 2014

Hologram Images and the Entertainment Industry: New Legal Territory?

Stephen Anson(fn*) © Stephen Anson

ABSTRACT

Modern technology allows for the holographic reproduction of a dead artist's likeness, with the ability to perform past classic works or new original artistic works. The Coachella Valley Music and Arts Festival performance by the "holographic" Tupac Shakur in April 2012 dazzled an excited crowd and made the idea of bringing back deceased musical celebrities or other public personalities a reality. The use of such holographic performances is in its infancy, but the potential for possible intellectual property infringement is real and concerns the areas of copyright, trademark, and-most importantly-the right of publicity, which protects a celebrity's name, likeness, voice and mannerisms. This new technology also creates the possibility of re-creating a past celebrity for nefarious purposes, but it is unclear what legal protections are available to the decedent's estate to challenge such potentially damaging uses. The right of publicity is a matter of state law, is granted in thirty-one states, and is extended post-mortem in only twenty of those states. Therefore, understanding what legal protections are available requires a complex examination of all relevant jurisdictions' intellectual property laws. Celebrities, public figures, and estate planners should be mindful of these new technologies, establish domicile in states with robust rights of publicity, and draft wills accordingly to ensure greatest posthumous protection.

TABLE OF CONTENTS

Introduction .................................................................................. 110

I. New Technology Allows for the Digital Recreation of Deceased Musical Artists ................................................. 111

II. The Right of Publicity is the Main Intellectual Property Protection against Infringement ............................................ 113

A. States without a Recognized Right of Publicity Provide Moderate Postmortem Protection through Existing Copyright and Trademark Laws .................................... 114

B. States that Recognize the Right of Publicity during an Individual's Lifetime Offer Similar Postmortem Protection as States that Do Not Recognize Such a Right ........................................................................... 115

1. The Right of Publicity in New York ...................... 116

C. States that Recognize the Right of Publicity during an Individual's Lifetime and Postmortem Provide the Most Robust Protection against Unauthorized Holographic Reproductions ................................................................ 117

1. The Right of Publicity in California ....................... 117

2. The Importance of the State of Domicile for Postmortem Protection ..................................... 120

III. Steps to Plan for the Most Robust Protection against Unwanted Holographic Reproductions ................................. 122

Conclusion ................................................................................... 122

Practice Pointers ........................................................................... 123

INTRODUCTION

In April 2012, the deceased rap artist Tupac Shakur returned from the grave and performed for an enthusiastic crowd at the Coachella Valley Music and Arts Festival in California.(fn1) Scientists did not actually reanimate Tupac's body to achieve this amazing feat; instead, they created a technologically elaborate holographic reproduction of his image, voice, and likeness.(fn2) As technology to create such holographic reproductions advances, more and more dead celebrities are likely to be brought back to the main stage to perform their classic hits as well as completely new musical compositions.(fn3) Such holographic images raise various copyright and trademark issues, but the main property right at stake is the right of publicity.(fn4) Because the right of publicity is only granted in thirty-one states, and the postmortem right is only recognized in twenty of those states, the protections against infringement available to the deceased artist's estate will vary depending primarily upon the state in which the artist was domiciled at the time of death, as well as the choice of law rules of the jurisdiction in which the suit is brought. This Article will first examine the new technology that allows these reproduced holographic performances to be possible. Second, this Article will examine the three main levels of intellectual property protection across the United States, varying from the lowest amount of protection to the highest. Lastly, this Article will investigate the steps that a living artist's or a deceased artist's estate can take to plan for the most robust protection.

I. NEW TECHNOLOGY ALLOWS FOR THE DIGITAL RECREATION OF DECEASED MUSICAL ARTISTS

Although the virtual Tupac Shakur at Coachella was widely called a hologram, that term was a misnomer because holograms are three-dimensional whereas Tupac's likeness was presented as a two-dimensional projection.(fn5) The two-dimensional image was projected onto a stage set, using the patented Musion Eyeliner 3-D Holographic Projection System, which then created the illusion of a three-dimensional image.(fn6) This projection technology is not new; rather, it is based on an old theater trick called "Pepper's Ghost," introduced in the 1860s.(fn7) Nick Smith, president of AV Concepts, which helped create the digital rendering, captured the significance of this performance when he said, "You can take their likenesses and voice and . . . take people that haven't done concerts before or perform music they haven't sung and digitally recreate it."(fn8)

This new technology is growing in popularity because it allows anyone to recreate dead artists and program them to sing their old songs, a different artist's songs, or even completely new songs. While living artists have been digitally altering old classic tracks to sing duets with the deceased since the 1990s, this new technology allows the programmer to make the hologram sing completely new tracks. Dr. Dre, the main driving force behind the Coachella Tupac Shakur performance, said he would love to bring out other dead celebrities to perform with him, like Jimi Hendrix and Marvin Gaye.(fn9) On April 25, 2012, the tenth anniversary of a crash that killed...