IP Law and New Rights of Publicity

Rogue One: A Star Wars Story (“Rogue One”) is the most recent Star Wars installment to hit theaters, and box office numbers have already declared the prequel a hit.  Chief among the dazzling digital effects of the film is digital-rendering of late actor, Peter Cushing.  While die-hard fans of the franchise were excited to see Cushing “return” as Grand Moff Tarkin, a role he originated in the original 1977 Star Wars film, Star Wars: Episode IV – A New Hope, legal practioners noted that his digital return raised other legal and ethical issues, specifically in the field of intellectual property.

While this is not the first time that technology has been utilized to bring back actors from the grave, Cushing’s reappearance garnered more attention than usual, no doubt due, in part, to the high-profile nature of the franchise, as well as for the stunning accuracy of Cushing digital counterpart in Rogue One. But while exciting, Cushing’s reappearance raises key issues about the deceased actor’s “right to publicity.”

A party’s right to publicity, also broadly referred to as “personality rights,” allows one to control the commercial aspects and usage of their name, likeness, and image, etc.  While rights of publicity often vary from jurisdiction to jurisdiction, California, a state that has long grappled with celebrity-legal issues, has generally been at the forefront in codifying legal protection for celebrities, most notably in California Civil Code Section 3344, the Celebrity Rights Act.

Under the Celebrity Rights Act, a plaintiff is allowed to sue another who knowingly uses their likeness in a commercial endeavor without their consent.  Specifically, however, statutes generally only apply to the appropriation of a celebrity’s “name, voice, signature, photograph, or likeness” in a manner that is “readily identifiable.”  To successfully bring suit under the statute, the plaintiff must demonstrate a direct connection between the use of their likeness and a commercial purpose.  And while plaintiffs are generally able to prove actual damages, primarily thanks to the predominantly commercial nature of films, courts do not require damages to be actually proven as statutory damages are also available under the statute.

Further, as rights of publicity fall under the umbrella of intellectual property law, it then comes as no surprise that California treats the rights to publicity of a deceased celebrity as property that can survive after death.  Specifically, California law recognizes that “name, voice, signature, photograph, or likeness has commercial value at the time of […] death,” regardless of whether that person has used any of those features for such value before death.  As such, California civil code also allows such rights to be transferable and descendible to heirs.

As a result, practioners should generally counsel their clients to seek consent from the estates of deceased actors before using their likeness in films.  While affirmative defenses, such as the First Amendment right to use, are available, such defenses must demonstrate that the work in question contains “significant transformative elements or that the value of the work does not derive primarily from the celebrity’s fame.”  As courts have historically not been sympathetic to use of one’s likeness after death for purely-commercial ventures, practioners must become more adept at recognizing the unique intellectual property law aspect of deceased actors’ rights to publicity, especially as today’s technology and digital effects continue to innovate and raise new legal issues that have not been previously encountered before.

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