Previously, I've written about the digital "resurrection" of Tupac Shakur, Ronnie James Dio and others. This week marked a giant leap forward (or backward depending on your worldview) in that trend. The late Peter Cushing, who among other famous roles played the iconic Governor Tarkin in Star Wars Episode IV: A New Hope, turns in a new "performance" 22 years after his death in the newly released Disney film, Rogue One.
How is this possible? Digital manipulation of Cushing's likeness. This is the latest in a line of developments where deceased musicians have "appeared" by hologram in concert, actors from bygone eras are inserted into TV commercials for vacuum cleaners and other products.
With the release of Rogue One, it is indeed a different paradigm now in film, tv and video content. We are rapidly approaching an era where people's likenesses can be resurrected via CGI after death to create new "performances" in future years that we can't now contemplate. What is a live performance really mean in this context?
After seeing the film in both 2D and 3D formats, I can say that the CGI work to resurrect Tarkin's character is startlingly good. Even going into the film, knowing what was going to happen, it was surprising. There is one more character that was digitally altered, but I won't spoil that surprise for those who haven't seen the film.
“There’s a whole new phenomenon where famous actors are getting themselves scanned in order to provide for their family and their family’s trust in perpetuity, so that they can be recreated in films in the future,” Taylor says. “Or as insurance, if they were injured or if anything happened while they were in a production.”
Assuming there is a contractual framework that will handle this issue in a comprehensive way, actors, and their estates can leverage the actor's likeness for "new" performances long after the actor is no longer with us.
Can a digital resurrection be copyrighted? Who owns a deceased person's likeness? What are the impacts on privacy law? There are many questions that must be sorted out. Not surprisingly, many state legislatures have acted on this very issue.
Privacy Rights After Death - State Laws
California has been, for a long time, the hub of the film industry in the United States. That grip is loosening a bit. As far back as 1985, the California Legislature enacted the Celebrities Rights Act to provide for a posthumous right of publicity, which can descend or be transferred by contract, trust or will. In California, the law grants this right on any person who died on or after January 1, 1915, and provides that there right remains for a period of fifty (50) years after that person's death. In other words, this is how an actor (or any person for that matter) can transfer their privacy rights to a trust to be enforced by their trustee after death.
Likewise, in Pennsylvania, there is a statutory right of privacy which protects against the unauthorized use of a person's likeness. 42 Pa.C.S.A. s.8316. (The "PA Privacy Law"). The PA Privacy Law provides that:
"any natural person whose name or likeness has commercial value and is used for any commercial or advertising purpose" may bring an action for infringement."
As with all statutory reading, you have to read and give mean to every word in the statute - there is a reason the words are in the PA Privacy Law. Let's examine a couple of terms that are central to the PA Privacy Law's purpose:
- "natural person" is either a living or deceased person who lived in Pennsylvania at the time of their death. 42 Pa.C.S.A. s.8316(e);
- "Name" or "likeness" means any attribute of a natural person that serves to identify that natural person to an ordinary, reasonable viewer or listener including, but not limited to, name, signature, photograph, image, likeness, voice or a substantially similar imitation of one or more thereof.
The PA Privacy Law can also be enforced for a period of thirty (30) years after a person's death in certain circumstances. The statutory post-mortem right of publicity in Pennsylvania can be enforced by a person, firm or corporation authorized in writing to license the commercial or advertising use of the natural person's name or likeness. Privacy rights can also be asserted under the PA Privacy Law by an executor named in a will or designated by a court, or the decedent's surviving spouse or, if there is no surviving spouse, their heir or group of heirs who have at least a 50% interest in the decedent's estate. 42 Pa.C.S.A. §8316(b).
I submit that this eventually will devalue our perception of the worth of live performance. Maybe not next year, maybe not in five years, but as we have seen in other contexts, (i.e. the death of the recorded music industry) an unlimited supply of any asset will depress the price and the luster with which people consider an idea sacred.