05/21/18

Digital Resurrections Necessitate Federal Post-Mortem Publicity Rights

Digital Resurrections Necessitate Federal Post-Mortem Publicity Rights

Meaghan Fontein

In the 1966 horror film Island of Terror, actor Peter Cushing’s character faced a predicament of dealing with computer-borne life forms resembling virtual humans. Fast-forward: 22 years after his death and 50 years after Island of Terror, Peter Cushing himself is resurrected as a virtual human to reprise his Grand Moff Tarkin character in Star Wars: Rogue One. While Cushing’s digital resurrection was seen as brilliant innovation by some, the performance upset many others-including his heir-who felt emotionally damaged from seeing a deceased person’s image repurposed for profit. Moral dilemmas, however, are merely secondary to the true threat of harm posed by digital resurrections: misappropriation for commercial gain. By definition, to misappropriate means “to put to the wrong use.” Reaching beyond the deceased artist’s control to digitally resurrect their exact likeness for profit plainly fits the definition. Digital resurrections also risk the ancillary harm of causing reputational damage if a likeness is revived in an upsetting manner or bad taste. This science-fiction worthy scenario has created a need to uniformly recognize post-mortem publicity rights in one’s persona.

Current intellectual property law does not adequately protect against the harm of misappropriation created by digital resurrections. Although the right of publicity is recognized by many states at common law in some way, it is generally only available to living celebrities who seek to protect their likeness. Unfortunately, publicity rights usually die with the celebrity in most states. Until the rights of artists to control their post-mortem likeness are clarified, heirs are left without any advice to stop the misappropriation of their loved ones.

This paper proposes recognizing a federal post-mortem publicity right to uniformly protect deceased celebrities from likeness misappropriation. The general purpose behind this recognition is to clarify the rights of artists to control the commercial use of their likenesses after they die. Part 1 focuses on the potential for harm caused by digital resurrections, and how current intellectual property laws fall short of protecting against it. Part 2 discusses the significance of a federal right through analyzing contrasting state laws, and then proposes a model federal post-mortem publicity statute.

99 J. Pat. & Trademark Off. Soc’y 481(2017)

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