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Several months ago I strolled into my local video store looking for the usual cheap cinematic fare to which I must admit I am addicted. Upon learning that the Steven Seagal action vehicle “Half Past Dead” was already checked out, I decided to take my chances on another movie that caught my eye: “Simone.” “Simone” stars Al Pacino as Viktor Taransky, a down-on-his-luck Hollywood director. The studio has just pulled the plug on Taransky’s latest attempt at a comeback film because the movie’s petulant leading lady has stormed off the set. Conveniently, Viktor meets a dying software genius who provides him with a computer program capable of creating a digital actor named Simone (short for “Simulation One”). Viktor digitally inserts Simone (played by Rachel Roberts) into the existing footage from his movie. The film becomes a surprise hit and the fictitious Simone a huge star. And that’s when the story gets interesting. Rather than disclose the truth about Simone, Viktor keeps her identity a secret and tells others that Simone is an intensely private person who does not appear in public. Soon everyone from the press to her co-stars (who shoot their scenes together without her on set) want to know about Simone. It never occurs to anyone that Simone might actually be nothing more than ones and zeroes. And that’s when the IP issues behind the story started appearing. Computer graphic experts will tell you that the day when the physical differences between a real actor and a digital actor become imperceptible is still many decades away. However, with sweeping advances in technology and movies such as “Final Fantasy: The Spirits Within,” how long will it be before one is unable to discern whether an actor on a screen is real or digitized? A host of IP issues would be implicated. For starters, would a digital actor like Simone be protected by copyright? Already courts have held that cartoon characters like Mickey Mouse and Godzilla, and literary characters like James Bond and Tarzan, are protectable. Wouldn’t a digital actor like Simone be just a more realistic-looking version of each of these examples? (Incidentally, would the copyright analysis be any different for a digital actor like Simone who appears so life-like she is perceived as a real person and not just as a fictional creation? Certainly Pierce Brosnan, the actor, cannot protect himself through copyright, though his James Bond character is protectable. Nonetheless, because one purpose of copyright law is to reward and encourage creative expression, should it matter how a digital actor is perceived by others?) Another interesting issue is copyright ownership. A person who writes a computer program is entitled to copyright protection for the underlying source code. In “Simone,” this would be Elias Koteas’ character, scientist Hank Aleno. But what about the director who uses the computer software to “breathe life” into the digital actor? Should this person also be entitled to a slice of the IP pie, the way a person who uses a screenwriting program owns a copyright in the completed script? And then consider trademarks. An individual’s name is capable of serving as a trademark provided it achieves a certain level of notoriety in the public mind (also called “secondary meaning”). For example, “Michael Jordan” is a registered trademark for colognes, skin creams and other personal hygiene products. Courts have also protected a character’s name, physical appearance and costume (but not its physical attributes or personality traits). In light of these examples, it is likely one can secure trademark protection for both a digital actor’s name as well as his or her appearance. This is especially true in “Simone,” where, as a result of becoming an international celebrity virtually overnight, it is likely she would be able to establish secondary meaning. A third, and perhaps the most interesting issue, is whether a digital actor like Simone would be entitled to a right of publicity. This right is generally defined as the right to prevent one from using another’s name and likeness for commercial purposes without their authorization. Some would argue that a digital actor should not be entitled to a right of publicity because it would be an impermissible expansion of the right. What’s next, these critics would ask, a right of publicity for businesses and corporations? How about a right of publicity for cartoon characters like Superman and Mickey Mouse? There are at least two reasons why these naysayers would be wrong. First, with the exception of some state statutes, there is no explicit requirement that one must be human to be covered under the right of publicity. Unlike the right of privacy, which is firmly rooted in fundamental principles of human dignity, the purpose of the right of publicity is merely to prevent the unauthorized commercial exploitation of another’s identity. This right does not necessarily invoke exclusively human characteristics. Indeed, noted commentators such as J. Thomas McCarthy and Melville Nimmer have already gone as far as to suggest that even animals may fall under its scope. Second, one can carefully define an extension of the right so that it does not cover every nonhuman application. One could extend the right only to cover those things that appear indiscernibly human. While technologically advanced digital actors like Simone would fall into this category, inanimate objects, businesses, and clearly fictional works like cartoon characters would not. This would address the concerns of those who believe that any extension not rooted in human principles would open the floodgates for nonhuman applications. It is also consistent with the purpose of the right. Critics would also argue that a digital actor should not be entitled to a right of publicity since it is already protected by other legal means, such as copyright and trademark. However, as the discussion above makes clear, whether one can secure copyright or trademark protection for a digital actor is anything but certain and often leads to even more questions. Considering the current state of technology, any meaningful discussion about digital actors and intellectual property surely could be construed as premature. However, given the amount of time and money that is spent annually to create and develop entertainment content, and the rate at which technology advances, it is only a matter of time before issues such as those raised above deserve serious consideration. I don’t know about you, but I can hardly wait. Ryan S. Hilbert is an associate in the Palo Alto, Calif., office of Wilson Sonsini Goodrich and Rosati.

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