“These Are Not the Actors You Are Looking For”: Right to Likeness in the Age of CGI

Science, Technology, and the Law

“These Are Not the Actors You Are Looking For”: Right to Likeness in the Age of CGI

New advances in computer generated image technology have opened a Pandora’s Box of issues relating to the portrayal of public figures after death. Such post-mortem use of public figures’ images has become prominent in pop culture since the release of “Rogue One: A Star Wars Story” in 2015. The film features the performance of an actor who has been dead since 1994. “One of the best performances in ‘Rogue One’ is by an actor who died in 1994”, www.washingtonpost.com (Last accessed Feb. 20, 2017).

Both Carrie Fisher and Peter Cushing played important roles in the original Star Wars trilogy and both have since passed away. Peter Cushing passed away in 1994 and his performance in the new Star Wars film is only possible due to a great leap forward in technology. “Carrie Fisher Loved Princess Leia’s Rogue One: A Star Wars Story cameo and watched it before she died”, www.digitalspy.com (Last accessed Feb. 18, 2017) . The special effects company Industrial Light and Magic created the image of Cushing seen in the film by mapping a digital face onto the face of Guy Henry. “The actor behind the CGI Tarkin in ‘Rogue One’ tells us how he created the character” www.businessinsider.com (Last access Feb. 17, 2017). ILM created the digital face through a complex process that mapped the original face of Peter Cushing from film and television appearances as well as a mold of his face made for another film. “How Did Rogue One Recreate the Late Peter Cushing?” www.slate.com (Last accessed Feb. 20, 2017).

However, the process and what it means for the film industry is opening many serious questions, both legal and moral. The first is who controls these rights, and how the film industry will respond to it. The second is whether the laws regarding property rights in actor’s images needs to be reevaluated.

Digital effects artists also recreated a younger Carrie Fisher for “Rogue One,” who was alive and had agreed to the process. “Carrie Fisher loved Princess Leia’s Rogue One: A Star Wars Story cameo and watched it before she died”, www.digitalspy.com (Last accessed Feb. 20, 2017). Cushing, however, had probably never even conceived of the change in technology that would affect his image after his death. It is doubtful that any actor who died before the turn of the century would have either. Yet, their rights have proven very valuable in advertising and, now, in film.

Actors such as Audrey Hepburn have been used to advertise products such as Dove Chocolate. “How we resurrected Audrey HepburnTM for the Galaxy chocolate ad”, www.theguardian.com (Last accessed Feb. 19, 2017). Bruce Lee’s likeness was used to advertise whiskey, even though the actor did not personally drink alcohol. “It’s a tribute, not an ad, says Bruce Lee’s daughter”, www.scmp.com (Last accessed Feb. 16, 2017). Marlon Brando’s image was used as a cameo in a recent Superman reboot. “Actors That Have Been Digitally Re-created for Films With CGI”, www.news.digitalacademy.org (Last accessed Feb 20, 2017). As the technology progresses, these types of roles might move out of the realm of cameos, and into leading roles or supporting characters.

This issue, in one way or another, has existed for decades as in the famous Lugosi case in California. In the late 1970s, the son of the dead actor Bela Lugosi, who had played Dracula in the 1930 film, sued over the use of his father’s likeness. Lugosi v. Universal Pictures, 25 Cal. 3d 813 (1979). The case was about licensing agreements for his father’s work but it helped generate the California Celebrities Rights act. “California’s Post mortem Publicity Rights Are In Flux, Experts on damages, Calculation & Accounting”, www.fulcrum.com (Last visited Feb 19, 2017).

The Celebrities’ rights act of 1985 has since been revised and amended but, in principle, it gave an actor’s family and the actor control over their image. Id. For example, Robin Williams forbade the use of his likeness after his death because he did not want it to be used or misused. “Robin Williams Restricted Exploitation of His Image for 25 Years After Death” www.hollywoodreporter.com (Last visited Feb. 19, 2017). Some actors are likely preparing for the shift as Williams did; but the law is not on their side. The California statute regarding the rights of actors can only extend protect their image for 70 years after the actor’s death. For Peter Cushing, and other actors, the family of the deceased has made the decision to allow the use of their likeness.

Traditionally, an actor has the right to his likeness and will receive compensation for performances in life. In 1990, Crispin Glover brought a lawsuit against the creators of “Back to the Future: Part II” for their use of his likeness as the character of George McFly, which he turned down. “Why Crispin Glover never did Back to the Future Part II”, www.denofgeek.com (Last visited Feb. 10, 2017). The case was settled for an unconfirmed amount but the argument was made that the film was presenting the character and not the actor and the issue was not decided in court. “Back to the Future II’ From a Legal Perspective; Unintentionally Visionary” www.thehollywoodreporter.com (Last visited Feb. 20, 2017). “Transformative” representation of a public figure is arguably protected under the First Amendment, but what constitutes “transformative” representations and free expression is still up for debate. Id. In a California case from 2001, the right to publicly lampoon or make fun of a public figure was upheld, despite the arguable use or even abuse of an individual’s image. Comedy III Productions, Inc. v. Gary Saderup, Inc., Cal. 21 P.3d 797 (2001). The court balances the first amendment rights of individuals with the property rights of actors. Id. at 803.

What can be said for now is that the right to an actor’s likeness and that of any public figure may be held for 70 years after death according to the most current version of the California statute. West’s Ann.Cal.Civ.Code § 3344.1 (West 2012). This means that films can use the likeness of actors who have long since died, which may create a problem when it conflicts with the actor’s desires. While the use of an actor’s image by family may be problematic, their use by corporate entities would be even more so. It is strange for a society that has great respect for rights in real property to have no interest in expanding protections for images that actors have spent their life creating.

Property law allows an actor’s home in the Hollywood Hills to be passed down to children and grandchildren. However, the actor’s likeness, essence, and character does not have the same level of protection. It is unclear whether the law will change because of the current change in technology. The current system may change drastically if the technology continues to progress and more actor’s images are used like Peter Cushing’s. An actor’s rights may become more like real property in the future when actors and their families realize how fleeting their ownership of their own likeness will become.