At this year’s Academy Awards ceremony, Brad Pitt was nominated for best actor for his role in “The Curious Case of Benjamin Button.” That itself was rather curious because for 52 minutes and 352 shots, Mr. Pitt did not appear in the film.
Or did he? Filmgoers could sense his presence: his voice, his facial expressions and twitches, his personality. But the character on the screen — a tiny, wizened old man, born in his 80s and destined to age backward — clearly was not Mr. Pitt. Instead, the elderly Benjamin Button of the first third of the movie was a digitized head, animated by a library of thousands of micro-expressions, set atop a 5-foot-tall actor’s body.
The innovations that allowed Pitt’s persona to permeate a computer-generated onscreen image, even though he was nowhere near the set, are important not only for the world of entertainment, but also for the world of intellectual property rights. This technology may alter and expand current notions of publicity rights, creating a doctrine far different than the one that has evolved over the past century.
EVOLUTION OF COMPUTER-GENERATED IMAGERY
To understand how computer-generated technology is changing the nature of publicity rights, it helps to travel back in time to trace its evolution. Fortunately, one need not travel far. The law of publicity rights is the youngest by far of the intellectual property doctrines. While trademarks can be traced back to biblical times, and copyrights and patents are called out in the Constitution, the law of publicity rights is barely a century old.
In 1890, when Samuel Warren and Louis Brandeis published their seminal “Right to Privacy” Harvard Law Review article, they acknowledged that no such right existed in the United States. Their article was an invitation to the courts to invent one: “Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society.”
Following its publication, courts cited the Warren-Brandeis article while considering whether a privacy right could exist in the commercial area. New York said no in Roberson v. Rochester Folding Box Co. (1902), a case involving the claim of one Abigail Roberson, whose pulchritudinous visage appeared without permission on 25,000 posters distributed by a flour company to stores, saloons and other places of commerce under the catchy slogan “The Flour of the Family.” Georgia said yes in Pavesich v. New England Life Ins. Co. (1905), a case involving an artist whose faced graced a kind of “before and after” ad. Paolo Pavesich was featured as the wise man, who had presciently purchased life insurance in his productive years unlike the other pictured fellow. In fact, Mr. Pavesich had not purchased any policy and was greatly embarrassed by the ad.
New York’s legislature promptly overruled Roberson, and in the coming decades, more courts lined up with Georgia’s Pavesich decision, finding some kind of publicity right. The exact nature of that right, and its relationship to privacy rights, remained hazy. In his famous 1960 California Law Review article, Dean William Prosser grouped the “appropriation for the defendant’s advantage of the plaintiff’s name or likeness,” as one of four variants of “privacy” law. But by then, some courts were already treating publicity rights as a separate doctrine, based more on harm to the pocketbook than to the psyche. Many states, including California, codified the right in their statutes.
In the last quarter of the 20th century, the right of publicity grew temporally and territorially.
In 1985, the California legislature effectively overruled its supreme court, by enacting a statute extending publicity rights beyond the grave (in a case involving Bela Lugosi, appropriately enough). Other states followed suit. Soon, 19 states had recognized postmortem publicity rights in differing lengths of years.
While legislatures were extending the temporal boundaries of the right of publicity, courts were stretching its territory. Initially, the right covered only a person’s name and likeness. But courts expanded the protected “persona” to cover a variety of elements. Bette Midler and Tom Waits were allowed to pursue claims against advertisers featuring singers using similar vocal styles. Vanna White and George Wendt were allowed to sue companies using robots evoking their roles as the letter-turner and barfly in “Wheel of Fortune” and “Cheers” respectively. Lothar Motschenbacher was allowed to claim damages based on an advertiser’s use of a distinctively ornamented racing car.
In each case, the courts found that a publicity right, separate and apart from copyright or trademark law, entitled the claimant to proceed. Indeed, in many cases the defendants, not the plaintiffs, owned the relevant copyrights and trademarks. As a result of this expansion, by the end of the century, publicity rights extended beyond the grave and covered virtually any indicator of a famous person’s identity. But a fundamental limitation still applied: The protected persona was fixed at time of death. It could not change. Then technology began to intervene.
POSTMORTEM PUBLICITY RIGHTS
In the 1990s, entertainers and advertisers turned to postmortem publicity rights to create new works.
Natalie Cole was 11 years old when her father recorded “Unforgettable.” In 1991, 30 years after his death, she added her voice to his to create a beautiful new duet.
Meanwhile, advertisers (with the cooperation of the heirs) were enlisting Stygian celebrities to promote their wares. John Wayne, dead over a decade, appeared in a series of commercials for Coors (sometimes alongside deceased members of Bonanza’s Cartwright family).
Diet Coke enlisted a bar full of Hollywood movie stars — including Humphrey Bogart, James Cagney and Louis Armstrong — to help Elton John promote its product. In the commercial, Bogie and Cagney are visitors to a club (Cagney’s date is the very-much-alive Christie Brinkley), while Elton John on the piano backs up Satchmo on the horn.
But however original and creative these “new” works might be, they incorporated pre-existing works of the deceased celebrities. Natalie Cole simply projected her father’s 1961 image and voice behind her to create her duet. The clips of the stars entering Elton John’s bar were recorded decades earlier: Bogart’s scene was plucked from “All Through the Night” (1942), Cagney’s from “The Roaring Twenties” (1939). Louis Armstrong’s riff with Elton John was taken from “High Society” (1956).
Such works might be thought of as exemplars of frozen postmortem publicity rights because they incorporated personae fixed in time. But by the dawn of the new century, computer technology enabled creators to attempt to generate truly living works featuring dead persons. These novel works have ushered in the age of dynamic postmortem publicity rights.
In 2000, DreamWorks released “Gladiator,” the saga of Maximus, a Roman general turned slave turned gladiator. The film ultimately garnered five Academy Awards, including best movie and best actor (for Russell Crowe, as Maximus). Oliver Reed, the famous British actor, was cast as Proximo, the owner of the gladiator troop. During filming, Reed died, thus creating a major production crisis for the filmmakers and an interesting legal issue for publicity rights practitioners. A key scene, where Proximo warns Maximus of approaching Roman soldiers, remained to be filmed. Rather than edit the story, they decided to film the scene without him. They took existing footage and sound, digitally imposed Reed’s head on a body double and generated a new scene, intentionally ill lit and hazy. One of the movie’s five Academy Awards was for visual effects.
This digitized scene in “Gladiator” might be considered the Kitty Hawk of modern publicity rights. Like that brief first flight, Proximo’s last short scene was important more for what it portended than for what it actually accomplished. Unlike the pre-existing works featured in the “Unforgettable” duet or the Diet Coke bar scene, this was an entirely new creation. And if technology could generate a new scene featuring a dead person, it could generate a new movie. “Gladiator” proved that given enough material and the right technology, the persona of publicity rights law could live on after death, germinating in the medium of computer-generated new works. Postmortem publicity rights could be dynamic.
The new technology proved itself eight years later with the release of “The Curious Case of Benjamin Button.” The story calls for the main character to age backward 80 years. No amount of makeup or prosthetics could allow one actor to portray the different stages of the protagonist’s life, because Benjamin Button of the early stages of the movie is not only old, he is physically tiny, having been born old. Visual effects supervisor Eric Barba recalled director David Fincher insisting on having one character portray Benjamin Button throughout these stages: “Benjamin has to be Brad. Brad has to drive the performance from beginning to end so that there’s a connection to him and the character. And that’s the magic of it. It’s Brad. It can’t be another actor. Period.”
To implement this strategy, sculptors and painters created life-like casts of Pitt’s head aged to suit his 80s, 70s and 60s, and then computer scanned them in 3-D. They designed composites of eyes, teeth, skin, eyebrows and 30 years of hairstyles.
Pitt performed alone on a sound stage, captured digitally from four angles. A live actor, wearing a blue hood over his head, performed on the set. Pitt’s face was merged into the composites of differently aged eyes, teeth, skin and hair, to create a digitized head, appropriate for the particular age being filmed; then the head was precisely transposed atop the live actor’s body. Moviegoers can sense, through the character’s voice and facial expressions, they are watching Pitt, even though the character is too small and aged to possibly be him.
Like “Gladiator,” “The Curious Case of Benjamin Button” won an Academy Award for best visual effects.
Together, the two movies demonstrate the potential for truly dynamic postmortem publicity rights. If the right library of micro-expressions is left behind, a celebrity’s persona can evolve and grow after death. It is possible to envision new works in which the actor not merely reprises his old roles but undertakes new ones. Imagine Bela Lugosi cast not just as Dracula in a sequel, but as a crime boss or galactic villain. Imagine a Groucho film in which Julius Marx not only leers and smokes cigars, but also dances. Imagine the Beatles, in a postmortem reunion, performing new songs.
Technology will also allow living celebrities to enhance their personae by traversing age. Imagine a new Harry Potter movie with Daniel Radcliffe still playing the 11-year-old Harry. Had the Godfather movies been produced a generation later, it is possible that the aged godfather played by Marlon Brando in the first work and the younger version portrayed by Robert De Niro in the prequel might have been performed by the same actor.
Postmortem publicity rights are already very valuable, earning the heirs of celebrities millions of dollars annually, often more than the celebrities themselves earned in their lifetimes. Technology will augment that value. But the changes will not be merely financial. With the possibility for creating new works, the barriers between publicity rights and copyright law will blur. With the possibility of creating new character features, to which goods and services might be commercially associated, the barriers between publicity rights and trademark law will erode. While no one can predict just how these technological developments will unfold, it’s quite possible that the law of publicity rights a decade from today will bear as little resemblance to the current doctrine as that doctrine bears to the legal world in which Warren and Brandeis lived and collaborated.
Contributing writer Lawrence J. Siskind, of San Francisco’s Harvey Siskind LLP, specializes in intellectual property law.