Tupac 2.0 - Fordham Intellectual Property, Media & Entertainment Law Journal
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Tupac 2.0

Tupac 2.0

Earlier this month, at the annual Coachella Music Festival, concertgoers were stunned to witness the performance of a lifetime, or should we say, an afterlife-time.  At the festival, nearly 100,000 fans witnessed a holographic Tupac Shakur, who died in 1996, performing alongside Dr. Dre and Snoop Dogg.  Shakur appeared on stage, performing two songs and even gave a shout out to the Coachella concertgoers.  The hologram was created by Digital Domain Media Group, which also produced the Oscar-winning virtual versions of Brad Pitt in The Curious Case of Benjamin Button.  While the exact techniques utilized have not been disclosed, the technology allowed for the creation of new moves and new audio for the Tupac performance.

Now that the technology is available and unveiled, this performance will likely not be the only one of its kind.  Dr. Dre and Snoop are reportedly considering taking the Tupac hologram out on tour.  There is also speculation about what other stars we will see in posthumous holographic performances.  According to AV Concepts President Nick Smith “You can take [celebrities’] likenesses and voice and . . . take people that haven’t done concerts before or perform music they haven’t sung and digitally recreate it.”  Raju Mudhar of The Toronto Star speculates that reanimating dead celebrities could be a real trend as it would likely result in a real “windfall for the estates of the deceased performers.”  Such possibilities raises questions about the protections against misuse of performers’ images for holographic performances.

Of course, any public performance of music, by living musicians or by holograms, requires permission of the copyright owner for the composition.  Typically, the American Society of Composers, Authors, and Publishers license out songs performed in concert.  For the Tupac performance, it is likely that the performance of “Hail Mary” and “2 of Amerikaz Most Wanted” was permitted by the copyright owner.

The holographic performance also implicates the Right of Publicity.  The Right of Publicity is the “inherent right of every human being to control the commercial use of his or her identity.” (McCarthy, The Rights of Publicity and Privacy 2d § 1:3.)  A state common law right, the Right of Publicity provides people with the right to control the commercial use of her name, image, likeness, or any other unquestionable aspects of her identity.  The right protects against the loss of the ability to control one’s persona, even if there is not necessarily any commercial harm.  (31 COA2d 121.) Most states recognize that the right is descendible though it varies as to the length of time one’s estate maintains the Right to Publicity, ranging from 20 to 100 years. (31 COA2d 121.)   In order to use the image of Tupac, Dr. Dre had to get consent from the executors of Tupac’s estate which is controlled by Afeni Shakur, who gave permission for the performance.

With the potential rise of holographic performances, stars should take care to protect themselves from appearing as holograms in ways not in their own interest.  The Right to Publicity, like many rights, is one which can be transferred.  (Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir. 1953); McCarthy, The Rights of Publicity and Privacy 2d § 10:8). The Miami Entertainment Law Group warns that signing away this right “could potentially cut off your right to share in a very lucrative stream of income AND your ability to determine how you will be remembered.”

It is unclear whether Tupac would have wanted to be remembered for this holographic performance.  However, at least his mother, who carefully controls the use of Tupac’s image, was pleased with the performance.

 

Kimberly Lehmann