So I’m thinking of presenting a talk about the copyright/right of publicity interplay. Think the Tupac hologram at Coachella from a few years back, or the more recent Michael Jackson appearance, using similar post-mortem technology.
These appearances are interesting to me because of the interplay between copyright and right of publicity. Consider copyright first. As it applies here, the US Copyright Act covers the image(s) from which the hologram was created, the hologram, the sound recording of the work the holographic image is performing and the underlying musical composition on the work. And of course different owners own different elements. The creator of the hologram likely owns the rights to it, but not to the underlying images. The record label likely owns the sound recordings used, but the song writer likely owns all – or at least 50% — of the underlying musical composition (with the publishing company likely owning the other half).
The right of publicity is also implicated. While it differs from state-to-state, that right gives all people, famous or not, the right to control the commercial use of their name, image, likeness, and identity. California permits these rights to survive for 70 years after death. Unless assigned, those rights pass like other property. In the case of Tupac, they went to Amaru Entertainment, a company formed by his mother to manage her son’s image.
Tupac was the first to give a post-mortem performance, and now we have Michael Jackson (giving a whole new meaning to his Thriller video). Others are scheduled to follow Elvis, Marilyn Monroe. She will be interesting given the loss of her post-mortem rights of publicity. But the images of her are still protected by copyright law (e.g. the source of the images), so permission will still be required.
It will be interesting to see if more of these zombie performances creep up. I can imagine going to my local bar and seeing Sinatra perform. Maybe they’ll become as ubiquitous as karaoke. If so, my guess is that formalities will slip and copyright/right of publicity permission will not always be obtained. To quote a big music client of mine when I mentioned to him a recent music copyright case I’d handled: “Huh, imagine that happens in our industry!”
I for one found the Tupac event pretty thrilling, but the Michael Jackson redoux a bid of a yawn. Really, a holographic performance by a deceased artist? I might as well watch old film footage of a performance at that point. Well, to a point anyway. I suppose even I would catch the Beatles if they happened to play my neighborhood pub. After all, it raises some really good IP issues and, more fundamentally, points out that death isn’t forever . . . it’s only until your next concert.
Jonathan Pink is Co-Chair of the Entertainment Group at Lewis Brisbois, resident in the firm’s Los Angeles office. He can be reached at 213-580-6312 or at email@example.com.