Max Kingsley
Posthumous holographic performances have become a captivating phenomenon in the entertainment industry, allowing audiences to experience the presence of deceased celebrities through advanced technology. Over roughly the past decade, artists such as Whitney Houston, Michael Jackson, and Tupac Shakur have been “reincarnated” as holograms, performing “live” for-profit in front of crowds of fans. While these performances offer unique opportunities for commemoration and entertainment, they also generate significant legal and moral considerations. This article explores the intricate web of legal principles surrounding posthumous holographic performances, focusing on intellectual property issues and rights of publicity.
Perhaps the most obvious intellectual property issue implicated by the use of holographic performances is copyright. Copyright law grants creators exclusive rights to reproduce, distribute, perform, and display their original works.[1] Copyright law protects music, sound recordings, and choreography[2]. Thus, when a holographic performance involves the use of copyrighted materials such as music recordings, film footage, or choreography associated with a deceased celebrity, obtaining proper authorization from the copyright holders is essential to avoid infringement. This authorization may involve securing licenses from music publishers, record labels, film studios, or other rights holders, as well as negotiating appropriate royalties and usage fees. Moreover, holographic performances often entail the creation of new audiovisual content, including digital recreations of the deceased celebrity's likeness, performances, and personas. In such cases, questions arise regarding the copyright status of these digital reproductions and whether they constitute derivative works or original creations. The level of creativity and originality involved in generating these holographic representations may determine their eligibility for copyright protection and the extent to which they can be used, reproduced, or modified by others. The steps required to obtain the rights to copyrighted works, as well as the numerous parties that may be involved, make the endeavor exceedingly expensive and complex.
Beyond copyright, the use of a deceased celebrity's image presents challenges related to rights of publicity. While an individual’s image is not itself copyrightable, the law does give individuals certain rights of “privacy” and “publicity” which allow people to control how their name, likeness, and other identifying information is used under certain circumstances. Most states in the U.S. have either a common law or statutory right of publicity that provides protection during the individual's lifetime.[3] Only less than half of U.S. states, however, have statutes granting a right of publicity after death (often referred to as post-mortem rights), which allow the decedent’s estate to profit from, or transfer, the deceased’s right of publicity.[4] In addition, many of the states that do recognize post-mortem publicity rights have adopted time and geographical limitations on these rights. For example, in New York, the post-mortem right of publicity extends only forty years after the “deceased performer's” death, provided that the decedent was domiciled in New York at the time of death.[5] This lack of uniformity among states regarding post-mortem publicity rights requires owners of the holographic images of deceased celebrities to tackle thorny and perhaps problematic legal considerations on a state-by-state basis when attempting to move the performance across state lines. Coupled with copyright issues, these hurdles make pursuing such an endeavor an especially daunting task.
Last, patent issues may come into play due to the technological advancements underlying holographic performances. Holographic performances often incorporate a blend of hardware, software, and imaging techniques to create lifelike representations of deceased celebrities. In this context, advancements in holographic display technologies, projection systems, image processing algorithms, interactive interfaces, and other components crucial to delivering immersive and realistic experiences may be patentable materials. Thus, when hologram technology is itself patented, and when that technology is used without a license, legal disputes over claims of infringement may arise. For example, Hologram USA, a company which held a patent for a disputed hologram technology, filed an infringement lawsuit in Nevada against Pulse Evolution Corp. at the time of the 2014 Billboard Music Awards, which featured Pulse’s work on a Michael Jackson hologram.[6] While the dispute was eventually settled, the litigation illuminates the fact that the creation and use of a deceased celebrities’ likeness through holographic performance requires an intricate and delicate balancing of various intellectual property principles and regimes.
In conclusion, posthumous holographic performances pose significant legal considerations, requiring careful navigation of intellectual property frameworks. As technology continues to evolve and holographic performances become increasingly prevalent, it is imperative for all involved parties to handle these legal complexities with diligence. Only through careful consideration and adherence to legal standards can the vision of posthumous holographic performances continue to be realized, while simultaneously respecting the rights and legacies of the deceased celebrities that holographic performances seek to celebrate.
[1] 17 USC § 106.
[2] 17 USC § 102(a).
[3] Kristin Bria Hopkins, When I Die Put My Money in the Grave: Creating a Federally Protected Post-Mortem Right of Publicity, Am. Bar Ass’n (Apr. 28, 2023), https://www.americanbar.org/groups/entertainment_sports/publications/entertainment-sports-lawyer/esl-39-01-spring-23/when-i-die-put-my-money-the-grave-creating-federally-protected-postmortem-right-publicity/#:~:text=Most%20states%20in%20the%20US,to%20as%20post%2Dmortem%20rights. [https://perma.cc/RLB4-R8LX] [https://web.archive.org/web/20240318184326/https://www.americanbar.org/groups/entertainment_sports/publications/entertainment-sports-lawyer/esl-39-01-spring-23/when-i-die-put-my-money-the-grave-creating-federally-protected-postmortem-right-publicity/].
[4] Id.
[5] N.Y. Civ. Rights Law § 50.
[6] Eriq Gardner, Michael Jackson Hologram Dispute Settled, Hollywood Rep. (Mar. 17, 2016), https://www.hollywoodreporter.com/business/business-news/michael-jackson-hologram-dispute-is-876554/. [https://perma.cc/YHA5-G4CJ] [https://web.archive.org/web/20240318184554/https://www.hollywoodreporter.com/business/business-news/michael-jackson-hologram-dispute-is-876554/].