Parisa Nikfarjam is a JD candidate at Osgoode Hall Law School and is taking the Patent Law course.
Digital technology has made it possible to resurrect dead celebrities, by way of digital clones created from photos and footages, and to manipulate their image such that they can be a part of new creative projects. This process, called reanimation, raises a number of legal concerns over the protection provided for the image and dignity of these dead celebrities (see: Joseph J. Beard, “Casting Call at Forest Lawn: The Digital Resurrection of Deceased Entertainers- A 21st Century Challenge for Intellectual Property Law” (1993) 8 High Tech. L.J. 101). In responding to these legal concerns a re-examination of intellectual property schemes, which may protect both the source images required for reanimation and a celebrity’s right in their image, is necessary.
A celebrity’s rights in their image, even post mortem has been protected in Canada by way of personality rights (see: Gould Estate v. Stoddart Publishing Co. (“Gould”) at http://www.canlii.org/en/on/onca/doc/1998/1998canlii5513/1998canlii5513.html and Horton v. Tim Donut Ltd. (“Horton”) at http://www.lexisnexis.com/ca/legal/results/docview/docview.do?docLinkInd=true&risb=21_T8870026634&format=GNBFULL&sort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T8870026639&cisb=22_T8870026638&treeMax=true&treeWidth=0&csi=280717&docNo=2 ). Personality rights, while utilized to protect the unauthorized use of a celebrity’s image (mainly for commercial purposes) may be inapplicable against the intellectual property rights afforded to the owners of the images that facilitate reanimation, particularly when the end product is characterized as an artistic, rather than commercial endeavour. This inadequacy of celebrity protection exists in the Canadian statutory regime as well, where the Copyrights Act and Trade-Marks Act, by current interpretation, are of little use to celebrities, who are not considered authors and thus owners of their own work.
In order to prevent the misuse of celebrity images post mortem, a reinterpretation of IP rights is required, paying attention to the way in which the image is used in the reanimation process. Reanimation often involves scanning a model that has been constructed from the image, derived from photos or footage, of a celebrity (for a detailed description of the reanimation process, see: Lorene Duran, “Humanipulation: Legal Issues in the Computer Animated Manipulation of the Human Image in Feature Film” at http://www.regent.edu/acad/schcom/rojc/human.html).
The IP rights that can be adapted to address this new use of image ironically belong to the copyright regime. This is ironic in the sense that copyright regimes have traditionally been used to protect the rights of those who capture and reinvent the image. In this way the celebrity, who may be the subject of the image, has often not been the owner and copyright holder. Reanimation may however redefine this understanding of ownership of the image so that it is possible for the interest of the celebrity or celebrity’s estate to be protected under copyright.
Reanimation involves the use of footage or photographs, both of which are copyrighted material, with the ownership vested in the party responsible for the fixation of the image (ex. photographer, producer etc.). The relationship that exists when dealing with ownership over footage or an image is often defined by the terms of a contract between the celebrity and the producer or photographer. Most contracts provide that a photographs taken or frames films are to be used exclusively in that particular project (see: Conrad Nest, “From ‘ABBA’ to Gould: A Closer Look at the Development Rights in Canada” (1999) 5 Appeal: Review of Current Law and Law Reform 12-17 at para. 24 at http://www.lexisnexis.com/ca/legal/search/journalssubmitForm.do).
In the Gould decision for example, the Court, in finding in favour of the author of a book on Gould, which utilized images from an interview years prior, emphasized that its decision was based on the permission granted by Gould to taking the original photographs (at paras. 16 and 26). Since the photos were not later altered or used for a purpose beyond the authorization of Gould, it did not amount to a misappropriation of Gould’s image. The same line of argument was successful in the Horton case, which allowed the use of the image of the deceased hockey player for charitable purposes since the use did not deviate from the initial contract allowing for the use of the image (at paras. 21 and 23). By extension, the Court in these decisions seems to pronounce that the permission of the subject is negated should the image be altered in such a way so as not to serve the original purposes for which it was captured. It would seem that in the realm of digital imaging, which relies heavily on the alteration of the original image, a new form of authorization from the subject is required. Had the celebrity granted permission for such alterations, then this permission would be adequate but since reanimation technology is a significantly new use of an image, it is fair to state that the celebrity’s intent in granting the original permission was not in contemplation of these new forms of use.
Reanimation’s new uses of a celebrity’s image thus allows for the use of copyright to protect the image of the celebrity post mortem. It should be noted however that the limitations of copyright protection, such as its 50-year length, and the exceptions made for fair use and educational purposes remain. It is in filling these gaps that personality rights may still have a role in protecting the image of the celebrity from misuse, and as this right is characterized as a transferable property right, the span of its protection is not bound (see: David Collins, “Age of the Living Dead: Personality Rights of Deceased Celebrities” (2002) 39 Alta. L. Rev. 914-933, paras. 20-22 at http://heinonline.org/HOL/Page?handle=hein.journals/alblr39&div=45&g_sent=1&collection=journals#924).
One Response
This is a very interesting post regarding the needs for IP law to keep pace with emerging technologies. One point that is alluded to in your post, but not addressed directly, is the tension between the potential owners of the copyrights you are discussing.
We see from Horton that the right to use one’s image can be given in contract. This is often the case for people in films and photographs. With respect to films it is typically the director, producer, or other executive who holds the copyrights to the film and, by implication, the celebrity’s likeness or performance therein. Similarly, photographers generally hold the copyrights to their images. The point is that once their work is complete, celebrities often have no lasting rights to their performances. This is relevant because the source material for reanimation in most cases would belong to the director, producer, or photographer who first captured the relevant images and holds the copyrights to the relevant material. However, once the image is sufficiently manipulated (a standard that could be difficult to define) the end product may no longer resemble the source material, but may be more likely to infringe the celebrity’s personality rights. As such, there seems to be a point where the level of manipulation during the reanimation process changes the reference point for copyright infringement from the filmmaker or photographer to the personality rights of the celebrity in question.
As described by Lorene Duran at http://www.regent.edu/acad/schcom/rojc/human.html, the use of reanimation technology allows a person’s likeness to be manipulated to do “just about anything”. The Court held in Gould that commercial exploitation of a celebrity’s persona infringes personality rights and can result in legal remedies. With an unlimited ability to control celebrity personas, reanimation will undoubtedly diverge away from the source footage or photographs to the point where it is no longer a commercial exploitation of the original material, but rather of the celebrity’s persona itself. It seems that after this point (which would need to be defined) the celebrity’s personality rights as described in Gould would step in and prohibit unauthorized use of the reanimation because the image of the celebrity would be at risk.
For example, imagine the situation where a filmmaker gives someone permission to use Marilyn Monroe’s likeness from that filmmaker’s movie. If her likeness is subsequently used for reanimation, at what point is the reanimation sufficiently distinct from the filmmaker’s original source material to render the use of the newly created material an infringement on Monroe’s personality rights? What amount of digital manipulation is necessary? This is a difficult question and it must be addressed before Canadian IP law is able to move forward and establish more stringent protection for reanimated celebrity images. As this type of technology continues to develop, new legal standards need to be established to ensure fair protection for all involved.
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