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'Hologram' performance by Tupac creates legal questions for IP lawyers

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More than a decade after his untimely death, rap icon Tupac Shakur appeared onstage at Coachella Valley Music and Art Festival. The posthumous debut in Chino, Calif., was made possible by technology that created a hologram-like image of Tupac, which appeared to interact with real-life rappers Snoop Dogg and Dr. Dre.
 

gettyimages-142964552tupac2-15col.jpg Rapper Snoop Dogg (left) performs alongside a projected hologram-like image of Tupac Shakur on April 15, 2012. (Photo/Christopher Polk/Getty Images Entertainment)

Fans raved about the performance, which quickly went viral online. And almost immediately, people wondered what the limits of this technology might be and how it would be used in the future. For intellectual property lawyers, Tupac’s virtual return to the stage raises some interesting questions.

The technology

Director and producer James Cameron’s company Digital Domain created the image of Tupac, using some real-life imagery as a foundation but computer-generated imagery to create an entirely new performance. While the virtual Tupac has been called a hologram, that’s a misnomer – true holograms are three-dimensional, while Tupac’s likeness is two-dimensional. The 2-D image was projected into a stage set, using the patented Musion Eyeliner 3-D Holographic Projection System, to create the illusion of a

three-dimensional image. The projection technology is not new; it’s based on a theater trick called Pepper’s Ghost, introduced in the 1860s.

Pepper’s Ghost relied on glass to create the illusion of an ethereal presence, but the difficulty of working with glass limited the size of “ghost” it could create. The Eyeliner system uses a fine, seamless material that can be stretched across a stage set and allow for the kind of illusion seen at Coachella.

Jonathan Faber, founder and CEO of Luminary Group and attorney at McNeely Stephenson Thopy & Harrold, pointed out one concern with staging lifelike posthumous performances.

“The elephant in the room here is should they do it, because there’s a myriad of ways this could go wrong,” he said.


faber-jonathan-mug.jpg Faber

In theory, it would be possible to put images of dead celebrities into situations they never would have endorsed in their lifetime.

Who’s in control

Faber pointed out that three areas of IP law come into play when considering the many questions raised by the virtual Tupac performance: copyright, trademark and – most importantly – the right of publicity, which protects a celebrity’s name, likeness, voice and mannerisms.

In the estates of deceased celebrities, relatives are the people generally making right of publicity decisions for their famous kin. Robert Meitus, partner at Meitus Gelbert Rose and adjunct professor at Indiana University Maurer School of Law and IU Robert H. McKinney School of Law, said that the technology that created the virtual Tupac performance highlights the need for family oversight of estates.

“I think it does point to a responsibility of families in safeguarding the rights of publicity. So the responsibility of families and those in control of right of publicity is heightened when you have people coming back to life, and we began to have the conversation years ago in the (IP) field and in the public in general … but it never really caught on,” he said.

Meitus said that while he did not know all of the details about how the Tupac performance was created, the family would likely be in control of images of his likeness that were the basis for the illusion. And recorded music or video used as a basis for the re-creation would need to be licensed separately by the company holding rights to that material. A contractual agreement would further clarify the relationship between all parties and how profits would be allocated.

A never-ending career

On April 26 – after Coachella – Billboard magazine reported that Tupac’s 1998 album “Greatest Hits” returned to the Billboard Top 200 for the first time since 2000.

Post-mortem popularity is not uncommon. Some entertainers – like Marilyn Monroe, James Dean and Michael Jackson – rake in as much, if not more, earnings after death.

Mark Roesler, chairman and CEO of the intellectual property management group CMG Worldwide, counts the estates of Monroe and Dean among the firm’s many clients. Dean, who starred in only three feature films during his lifetime, was number 12 on Forbes magazine’s “Top Earning Dead Celebrities” list in 2009 – 54 years after his death – earning $5 million in the previous year.


mark roesler Roesler

“Like James Dean said during his lifetime – if a man can bridge a gap between life and death and live on after he died, he was a great man. Even though James Dean said that, I don’t think he knew he was going to live on,” Roesler said.

Meitus said some of the questions prompted by the Coachella performance arose in the past, as advertisements featured long-deceased celebrities seemingly interacting with modern-day actors. But those images were created using snippets from original films, edited into the new commercial footage. The virtual Tupac, on the other hand, put on a new performance at Coachella.

“If they created wholly new imagery of a dead person, you’d only need the right of publicity from the family,” Meitus said.

He said it’s conceivable that someone could create an original image of a deceased celebrity, much like an artist could paint a portrait from memory. But what’s more likely is that a re-created image will be based in part on previously existing imagery.

“It raises the issue of how it is hard to create original imagery of people – it’s hard to create anything original in this world,” he said. That fact is evident in music, because performers have been sued for creating songs too similar to previously existing melodies, he added.

“When you’re trying to make original holography, I can imagine the same problem – you’ll base it on images that exist. The people copying or creating the new imagery – if they’re trying to create a new CGI image of Fred Astaire, they’re probably going to go back to ‘Singing in the Rain’ – or with Humphrey Bogart, ‘Casablanca’ – and look at his expressions,” Meitus said.

Past and future

Roesler explained that prior to the 1950s, celebrities were entitled to a right of privacy, but that right ended with their death.

“Back then, sometimes these valuable intellectual property rights weren’t even addressed in the will,” he said.

A series of high-profile court decisions beginning in the 1970s reinforced the notion that celebrities are entitled to control how their image is used.

In Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), the United States Supreme Court considered a complaint from Hugo Zacchini, who was known for performing a 15-second “human cannonball” routine. Zacchini argued that a Scripps-Howard employee violated his right of publicity by recording and airing footage of the entire routine. The Supreme Court held that Zacchini should be compensated for the footage, because broadcasting the entire act posed a significant threat to the economic value of that performance.

Already, plans appear to be under way to carry on at least one entertainment career that was cut short by tragedy. On April 25, the 10th anniversity of a crash that killed bandmate Lisa “Left Eye” Lopes, the group TLC announced it was discussing plans to tour with a virtual Lopes.

“The technology is fascinating, and it exists, so it’s going to happen – you don’t put the genie back in the bottle,” Faber said. He said while he hopes the technology is applied tastefully, in a manner that would be in following with the deceased performer’s wishes, he suspects some questions will ultimately be answered in court.

“My prediction is it will become a source of licensing revenue for some of these personalities, and it also will become fodder for lawsuits. That’s what I see on the horizon with ‘hologram’ technology.”•

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  1. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  2. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  3. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  4. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  5. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

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