People in the entertainment business (and everyone else) have been reading the news that the late actor James Dean was cast in an upcoming film project. Dean, who died in 1955, will be digitally resurrected through CGI technology. Dean - well, not exactly James Dean, but the likeness of James Dean - will “act” in an upcoming film that I’m not even going to name because of my personal aversion to this.
Many people, not just film industry people, are expressing their displeasure with this. I am one of them. We have seen this before, with Disney’s use of the likenesses of the late Peter Cushing and Carrie Fisher in the film Rogue One. I wrote about that extensively here.
From a legal standpoint, there are two important questions: 1) How did this happen? and 2) How can people control their likenesses after death?
In my earlier piece, I reviewed the state of the law in Pennsylvania and California on the point of how your likeness rights can be protected. Here’s a quick recap:
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."
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).
How Did We Get Here?
So back to the question of how exactly did James Dean get booked for an acting gig 54 years after his death? From some preliminary reading, it appears a that his likeness rights were sold to a third party, and that company entered into a deal with the film producers. So here we have a case of a transaction that was entered into years ago, likely before the ability to digitally resurrect a person was even a known risk, and technology developing a capability that no one could have conceived of or bargained for at the time the likeness rights deal was struck.
How to Approach Likeness Rights Control After Death
The James Dean situation should now cause all the agents of all public figures to think hard about those likeness rights deals, and approach these deals in a much more nuanced way. Rather than a wholesale grant of likeness rights in exchange for a one time fee or ongoing royalty, a better approach is to retain some control over the types of projects that your likeness could be used for in the future. This applies to subject matter also. If you were a peace activist during life, would you want your likeness to be used in a war film that glorifies violence? You can easily imagine many variations on that theme.
One thing is certain: technology is radically changing the entertainment space in all mediums. It is incumbent on us to think differently and more in depth about these issues from a planning standpoint when negotiating these contracts.
What To Expect in the Future?
Simply put, expect a LOT more of this in the future. Look at the trends in Hollywood, where major studios crank out the same or similar blockbuster projects one after the next. The major studios by and large are not risk takers. They want bankable stars. Who better than a superstar from yesterday, that can be completely controlled via voice acting and digital rendering? This digital actor will never show up to work late, get arrested for public drunkenness, or be involved in any scandal of the types that we have seen in recent years that cause an entire production to stop. It is highly likely that these digital resurrections, or recreations will become absolutely commonplace.