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Previously published in the Los Angeles Daily
Journal
When Tupac Shakur took the stage at Coachella last month, the
ovations from the fans at the show were quickly followed by a spike
in his catalog sales. The new use of hologram (sort of) audio-video
technology in the live show was a huge hit, and is sure to be
repeated at future live events. Not surprisingly, and certainly in
the music business, with new technology we often see legal issues
arise as intellectual property rights get exploited in new ways.
Because this may be true in the aftermath of Tupac's
appearance, a refresher at the intellectual property rights in play
is warranted.
On the Right of Publicity issue, a deceased celebrity's
right to control the commercial exploitation of his or her name,
voice, signature, photograph or likeness is protected pursuant to
Civil Code Section 3344.1. Tupac's Estate reportedly granted a
license permitting his "appearance" at the shows in
exchange for a fee.
On the copyright side, with one exception the rights involved
would appear to be virtually identical to those at issue if
historical Tupac videos were displayed during the show. Master use
licenses (assuming any master recordings were used) and synch
licenses (permission to "synch" the underlying musical
compositions to a visual image if DVDs of the show were sold) would
be obtained for any use of recordings and musical compositions,
with the proper copyright owners being paid per their agreements.
ASCAP and BMI would handle payment of any "public
performance" royalties due.
But what about a copyright for the creator of the holographic
image itself? Just like a photographer who creates the lighting,
scene, exposure and artistic elements of his or her shot, the
"holographer" here created the way Tupac was digitally
projected onto the stage. Using Copyright Act nomenclature, the
holographer would be the "author" of that
"work," entitled to control the exclusive rights
enumerated under the Copyright Act. If the hologram was created
under a "work for hire" agreement whereby the holographer
is "employed" to create the work (a likely scenario), the
employer would own the copyright. Whomever the owner, rights to
this copyright would also have to be licensed to avoid a claim of
infringement. Going back to our photographer, regardless of any
rights Tupac's Estate may have in the use of his name, voice
and likeness in the hologram, a license from copyright owner of the
hologram would also be required.
Transactional copyright and intellectual property practitioners
will not likely find anything remarkable in putting together deals
that include the holographic appearances of deceased celebrities.
The component rights of the whole must still be identified and
acquired. The instant appeal and success of Tupac's Coachella
appearance means that we are likely to see more of our performing
artist icons cast into a live performances. This will include those
who have left us, as well as performing artists who for one reason
or another no longer perform. As a result, there is a new group of
"artists" and the copyrightable works these holographers
create to be protected and accounted to — and given the
reaction to their work in creating "Tupac," worthy of
protection they are.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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