C. A Changing Paradigm
Unlike for evidence and child pornography, however, this Author believes that current law may--although not necessarily--prove
inadequate for dealing with the problems digital technology will present in regard to the reanimation of dead celebrities.
This is because, unlike for evidence and child pornography, the fundamental issue is not whether an image is real or instead
has been subject to manipulation, or is perhaps entirely a product of the imagination. For purposes of reanimation, images
may be merely simulations and yet be culpable. One can infringe a protected interest merely by creating a simulation. How
far intellectual property should extend is certainly a topic for debate, but few argue about if its protections should exist
at all.
(837) Therefore measures may have to go farther than in the
Parts above to protect even existing interests, much less more broad ones.
This section therefore discusses how existing intellectual property regimes could be expanded--although again if and only
if necessary to do so--to counter digital incursions. Some commentators have suggested that for the law the core problem digital
imagery poses is that technology moves so fast that no legislative body can keep up with it.(838) But even if this is true, it is hardly a justification for inaction or ill-informed action; and for reanimation, it is not
true--at least yet. For a brief period of time--until available computer power again doubles or triples(839)--intellectual property problems pertaining to realistic images in film are still unlikely to arise:(840) Virtual reality systems still lack the power to present sufficiently photorealistic images.(841) Now is therefore the time and opportunity to plan ahead, and prepare for that which technology will have wrought.(842) Lawyers are "among the most important hands on deck during this challenging time."(843)
Forms of intellectual property in addition to publicity rights thus could be augmented in order to manage problems associated
with reanimation.(844) For example, heirs or rightsholders possibly could file a claim for trade dress infringement.(845) Until 1992, to prove trade dress infringement, a party had to demonstrate that the visual appearance of a work was non-functional,
that it had acquired secondary meaning, and that the use of the same or similar artistic style was likely to cause consumer
confusion.(846) But a recent Supreme Court decision extended the statutory protections of trade dress to works which are inherently distinctive, whether or not they
have acquired secondary meaning.(847) Afterwards, a court ruled that even though a set of posters were sufficiently distinct as to avoid liability for copyright
infringement, their imitation of an artist's style was an infringement on that artist's trade dress.(848) Therefore, if a dead celebrity's performance embodies an artistic style,(849) heirs and rightsholders may be able to use it as a cudgel to block works that depict the celebrity but do not otherwise infringe
copyright or other intellectual property protections.(850) But trade dress is a nuclear weapon in the sense that, unlike most other intellectual property types, trade dress does not
have a finite term but potentially may endure forever.(851) It thus should be called upon only if absolutely necessary; while "such expansive protection would be a boon to a few often-imitated
artists, it could extend an artist's monopoly beyond socially optimal levels, thereby stifling creativity."(852)
An additional field of law that could be utilized to address the problems of reanimation is false light privacy, a means
by which the sullying of celebrities once they are no longer in a position to defend themselves could be precluded. Commentators
have concluded that false light privacy actions could be sustained for digitally altered photos of living persons:(853) for example, 1990 Massachusetts gubernatorial candidate John Silber supposedly would have had grounds to sue William Weld over a campaign commercial in which an image of Silber had been manipulated to appear more menacing.(854) False light cases involving photographs often have involved unflattering appearances. In Burton v. Crowell Publishing Co. an action was brought to enjoin the use of a photograph that, due to an optical illusion, made the plaintiff appear physically
deformed.(855) The court reasoned that if "such a picture [had] been deliberately produced, surely every right-minded person would agree
that he would have had a genuine grievance; and the effect is the same whether it is deliberate or not."(856) Even prior consent to be photographed does not leave one without redress.(857) A reasonable person does not anticipate that it will be distorted or changed from a "normal" appearance.(858) But false light is a cause of action for living individuals.(859) To extend its protection to dead celebrities would be a radical change, requiring substantial justification that has not
been evidenced in legal debate. But the seeds for such a justification may have been sown: In Gill v. Curtis Publishing
Co.(860) the court concluded that technological advances by the mass media had made it necessary for the courts to be able to create
a legally enforceable privacy right to protect against media encroachment upon an individual's personality and "spiritual
sensibilities."(861)
The area of law with probably the most potential to be adapted to address reanimation problems, however, is the copyright
sphere of intellectual property. It already has been briefly mentioned: apparently all reanimations to date have been authorized
by those who own the footage used in the process.(862) Further, extensive scholarship already has been devoted to the creation and copyright of montages of existing images,(863) as well as to the piracy and distribution of digital images.(864) But the creation of new moving images from existing components--a "digital collage," if one will--or without any reference
to existing works has not.(865) But copyright potentially could address reanimation through such techniques in at least two ways. Digital collages may be
held to be a permutation of fair use,(866) and thus permissible under the law, or instead to be a permutation of derivative works,(867) and thus not permissible under the law. Further, fictional characters long have been granted at least some measure of copyright
protection. If the on-screen personas of celebrities were to be defined as characters, they would be protected separately
from the work in which the celebrities appeared, as well as separately from the publicity rights of the celebrities that portrayed
them.
Copyright attempts to establish a balance between the interests of the creators of works, and the interests of the public
that would make their own use of them, through fair use.(868) More than any other form of intellectual property, copyright thus provides an internal means through which to mediate disputes.(869) But digital works present a special problem because they inherently challenge our standing notions of what a creative work
is. In their context, "the traditional distinction between producers and consumers of images evaporates."(870) For the most part, the creation of new digital works still requires some dependence on existing works.(871) But it is important to recognize that not all digital works are alike; there are different types of digital collages, some
more fair than others.
One commentator, discussing "digital sampling," audio collages made possible by technology that have been the subject of
legal disputes since at least the early 1990s,(872) asserted that rappers like the Beastie Boys reproduce music, whereas frequently-sampled artists like James Brown produce music.(873) In a more traditional context, one may compare Edouard Manet's Olympia, based on Titian's Venus, and Robert Rauschenberg's Persimmon, based on Pieter Paul Rubens' Venus.(874) Manet broke away from the style of the original painting by introducing a flatness in the paint and making his central figure a
prostitute rather than a goddess.(875) Rauschenberg, in contrast, added little to Rubens, simply silkscreening photographic "originals" directly onto his canvases.(876)
Therefore, legal tools are needed through which a reanimation can be determined to be either novel or derivative (assuming
that we merely seek to maintain the current levels of legal protection, and not a wholesale revolution in intellectual property
law), even while recognizing that some elements will by definition be derivative, for the entire purpose of reanimation is
to evoke the image of an existing, if passed on, celebrity.(877) Certain parts of the human face are powerful recognition cues: The Lone Ranger covered his eyes and not his forehead for a reason.(878) No reported decision yet has addressed digital sampling in the context of visual works, much less moving images, but some
guidance may be provided by the abortive FPG Int'l v. Newsday, Inc.(879) The plaintiff alleged that Newsday had taken a photograph managed by FPG, depicting a pair of suited, clock-faced businessmen sprinting through a desert, and scanned it into a computer.(880) Newsday then allegedly edited out parts of the landscape, and introduced new elements from another FPG photograph.(881) The resulting image was used to illustrate a lead article on virtual reality.(882) The case was settled, without a published opinion.(883) But under the settlement reached, FPG received $20,000 in licensing fees from Newsday--ten times what the agency would have normally charged for the use of the photographs.(884) To err is expensive.
But in analyzing legal issues regarding reanimation one can now look to decisions in related areas of copyright law for
guidance, most notably the digital sampling of audio works.(885) The most notable example is that of 2 Live Crew's rap parody Pretty Woman of Roy Orbison's copyrighted hit song Oh Pretty Woman.(886) In producing its parody, 2 Live Crew apparently digitally sampled the Orbison song and incorporated a portion of the original into its own "less pristine" version.(887) The Supreme Court's decision indicates that by sufficiently altering a digitized "intermediate copy," one may capture the essence of an artist's
work, yet not infringe the artist's copyright.(888) The implications are far-reaching. The original artist is not compensated for the use of his work, even though much of his
creative effort may be reflected/exploited in a later digital manipulation.(889) Moreover, digital manipulations could damage or even devastate the market for his work by making less expensive, stylistically
evocative works available.(890) Indeed, if artists are as a result deprived of economic rewards for their efforts, the incentives for even the very creation
of original works may decline.(891)
So far this does not appear to have happened, however. Perhaps art in a digital era will prove different than before, a
cooperative endeavor like the early days of the computer industry that made it possible.(892) But this may be unlikely, especially in the long term, given the effort currently being put into developing methods to protect
intellectual property in a digital era.(893) Indeed, if the digital era proves to be different than those that have become before, it may be one in which stricter
protections are required. Some commentators argue that the key difference to focus on is intermediate copying.(894) Digital works are distinct in that they are inherently processable and transformable.(895) In order to prepare a digital manipulation, an individual must first transfer a copyrighted work into a computer's memory,
creating a new work that is neither the final work nor the original.(896) Historically, it rarely has been necessary to contemplate intermediate copying because works that draw upon such copies were
likely themselves to infringe a copyrighted original.(897) But technology has made it much more likely that final works will not be infringements, because they are either a fair use,
as above, or because the final product is sufficiently dissimilar from the original.(898)
One possible solution would be to view all works based on digital samples of another work as infringements, based on the
fact that the sampler certainly had to have made a copy of the original work as a preliminary step in the process of creating
his work.(899) Such a regime could be mediated by a compulsory licensing program: Some commentators urge that such a system is in fact imperative,
the only means by which to ward off the hazards of digital technology.(900) Indeed, some of them observe that a licensing scheme could take advantage of the same technology that makes it necessary,
allowing for online registration and pattern matching to determine if works are similar.(901) One proposal would allow for some licensing requests to be denied, to allow performers some control over their works, but
with a statutorily set price and minimum number or percentage of requests that must be granted, in order to ensure some public
access to them.(902)
But whether such a program would be effective for even audio works has been intensely scrutinized; video likely would pose
even more complications.(903) For example, at the beginning, one must determine who has rights in a work; the Copyright Office has suggested that all the creators of a reanimation should, including not just directors but cinematographers, art directors,
editors, and actors and actresses.(904) Furthermore, a right to refusal if partial might not allow a celebrity to effectively protect their image--or depending on
its terms could allow excessive protection, such as delaying any uses beyond the time at which it would have a market.(905) Many of the same criticisms applied to a suggested audio licensing regime also here apply. Licensing proposals usually fail
to take account of the fact that samples vary drastically in terms of their qualitative value.(906) But deploying a multi-tiered, multi-factor test in order to take these differences into consideration would undercut the
simplicity of licensing, requiring subjective judgments.(907) Indeed, because there is a relatively small bargaining community for works, and each instance of sampling presents a unique
set of considerations, some commentators have stated that legislative solutions may be inappropriate, if not detrimental.(908) A purpose of sampling is to change the fundamental character of a work by dislocating it from its original context;(909) imposed rigid compulsory licensing could counterproductively interfere with an artist granting permission to a manipulation
of which they approve, or allow an artist to in the end block a manipulation over which they should have no control based
on moral rights.(910)
Further, like many other expansions of copyright, a rule of strict liability for digital intermediate copies would be a
drastic shift in the balance of power, justified only to compensate for a previous shift due to digital technology; but there
is currently no social policy rationale that so demands.(911) If all works based on intermediate copies were defined as infringements, "[s]ociety will be unable to recognize digital technology's
limitless potential for generating new works."(912) "Piggybacking" should be tolerated if the end result is sufficiently original;(913) and indeed, there is support for holding interim copies of art nonactionable.(914) One commentator postulates that if a copyrighted painting by Piet Mondrian were digitized, an artist/engineer could rearrange its precise color combinations and shapes to form a work which, while
evocative of Mondrian, would yet appear dissimilar from any of his work: The resulting manipulation would not merely be Mondrianesque, but also would embody the artist/engineer's creative expression, a valuable contribution to society--a contribution that
would be denied life by a strict intermediate copying rule.(915) An additional problem is how to determine when a final image is based on another image, absent a paper--or, if one will,
an electron--trail.(916) Many in the computer industry are said to presume that the dividing line falls when an image is not recognizable as the descendent
of another image.(917) But recognizable by whom: The creator of an image? The reasonable man? The factfinder?(918) Alternatively, the arbiter could be how much data is shared among the images. But again critical questions are left unanswered;
e.g., what percentage of commonality among the dots in images is too much?(919)
Another possible solution to re-establish a balance of rights is to permit an author to seek redress for intermediate copying
alone.(920) The law has recognized that this is possible; Sega Enterprises. Ltd. v. Accolade, Inc.(921) reaffirmed that intermediate copying could be an infringement,(922) although it did not find liability in that particular case.(923) But, in the end, this approach might prove no better and no worse than a strict rule for all works based on digital intermediate
copies. An intermediate copy is unlikely to create any financial injury for the original artist, unless the effects
of any final work based on it are taken into account;(924) liability for intermediate copies thus likely would be meaningless, or indistinguishable from liability for works based on
a digital intermediate copy. What is necessary instead is a means by which to provide artists with a remedy when a final digital
manipulation only nominally adds to the societal store of creative works.(925) But this is by no means a likely prospect either, given the historical admonishment by Justice Holmes that jurists are ill-suited to judge the worth of artistic works.(926)
A further alternative to be considered is whether the historical protection of fictional characters by copyright could
be extended to address reanimation.(927) Because the Supreme Court has not ruled on the issue, the federal appeals circuits have differed on how much protection fictional characters should
be granted; the Second Circuit,(928) for example, has been less generous than the Ninth Circuit.(929) DC Comics' efforts to protect its character of Superman are a notable example, spanning more than five decades.(930) In a digital world, one means by which to prevent the expropriation of the identity of dead celebrities might be to grant
their on-screen personas that same type of protection. The mannerisms celebrities adopt once on camera is not necessarily
their true identity, the subject of publicity rights, nor limited to a particular production, which would itself be protected
by copyright. But celebrities are often identified by--and with--their public film roles.(931) Eastwood, for example, is known for his portrayal of rough-and-ready characters;(932) one usually does not need to know the plot and/or setting of an Eastwood film to have a feel for the type of character he will portray in it.(933) This similarly has been noted to be true for other stars, such as Al Pacino,.(934)
The value of a celebrity therefore lies not in who they really are, but in who they appear to be: A celebrity
is as much a fictional character as Superman or Sam Spade.(935) The parallels between celebrities and characters are numerous. Characters, despite their lack of tangible form, can take
on a life beyond the works in which they are depicted.(936) Further, a character is more than just an idea but a fully depicted individual; unlike a hypothetical "evil bear," they possess
a distinct protectable quantity.(937) Further, treating celebrities as characters would therefore not prohibit all depictions of them; currently, for example,
physical attribute and physiognomy are unprotectable quantities,(938) and would not amount to infringement standing alone.(939) But it would grant performers greater rights than they now possess. Already it appears that the producers of a television
show do not own the elements of a character that are the contribution of an actor,(940) but it is presently unclear who does. Further, the protection would not be frozen in time; characters can evolve. Mickey Mouse, for example, started off as a slightly sadistic adventurer, before later assuming a more milquetoast identity.(941)
The protection of celebrities' images as if they were characters would draw together many of the concerns addressed above;
heirs and rightsholders would not be granted complete control over a dead celebrity, but would via copyright have an enhanced
ability to prevent the tarnishing of the celebrity's image. Again, a balance is required; characters, such as Superman, are used as a tool to discuss issues ranging from religion to the economy; they live in the public imagination, as part
of the language.(942) One commentator has noted that there is a distinction between reanimating a celebrity to play a role, as they would in life,
or to play themselves.(943) This principle might embody the best possible solution as it would allow for some but not all uses; John Wayne, for example, could not be cast in a new cowboy movie, but could be cast against type, such as Genghis Kahn.(944)
In addition, one commentator has suggested that although reanimating a celebrity in an unsavory context strictly would
raise questions under copyright law, elements of the questions would resemble problems under defamation law.(945) Indeed, as for the colorization of films, many of the objections raised to digital technology seem to be less about money
than about creative control. Protests after Ted Turner's purchase of the MGM film library were directed towards his claim that "I can do anything I want with them."(946) George Lucas astutely recognized that colorization was only the tip of the iceberg: Films could be "recast with stars we never directed,
uttering dialogue we never wrote, all in support of goals and masters we never imagined we would serve."(947) But if celebrities were to also be characters, they would have added opportunity to control their depiction, without the
potentially cumbersome problems that would accompany many of the possible solutions discussed above. But, of course, any solution
should receive careful evaluation before implementation, as the unexpected may always transpire.(948)
Further, as noted previously, none of the solutions proposed above may actually prove necessary; the problem is that no
one has attempted to determine whether they will, or even has tried to start practitioners and academics thinking about these
issues. The challenges digital imaging poses for the law are vast; the current law that would apply to digitally resurrected
characters is a patchwork of state and federal law, unpredictable and inefficient.(949) Indeed, thinking about these problems may itself be much of the solution; as for evidence, voluntary codes of conduct may
offset needs for legal action, for example--but only if they actually are developed and implemented. Media circles, in contrast,
already have seen the potential pitfalls of image manipulation. "The software is so seductive," said Craig Denton, associate
professor of communications at the University of Utah.(950) Examples abound of magazines altering photographs for "infotainment." Sports Illustrated, in a feature on the Salt Lake Trappers' 29-game winning streak in 1987, made the sun set in the east over the Wasatch Mountains.(951) The New York tabloid Newsday put Tonya Harding and Nancy Kerrigan on the same ice rink when no such incident occurred.(952) But although complete consensu
