“Many young and old actors today are having their heads and bodies digitally scanned to future-proof their image.”
— Mike McGee, COO
“It’s very likely that they secured permission from Cushing’s estate or his direct heirs because the laws of postmortem rights of publicity differ from state to state.”
— Tyler Ochoa, Professor
Santa Clara University School of Law
As was the case with the seven films in the franchise before it, the most recent installment in the Star Wars cinematic universe blew away the competition at the box office this past weekend. Rogue One: A Star Wars Story earned $155 million at the domestic box office in its first weekend.
(Note: There are no spoilers in this column.)
As someone who was just a little behind the age of the prime audience when the original trilogy was released (I was 2 years old when the first Star Wars film shattered box office records), it was jarring to sit in the theater and see the character of Grand Moff Tarkin make his return to the screen.
That shock had nothing to do with the biography of the character, but rather with the fact that the actor who portrayed him, the irreplaceable Peter Cushing, died of complications from prostate cancer in August of 1994.
So how did Lucasfilm and Disney bring the character of Tarkin back? They did it through Computer Generated Imagery or CGI. Another actor stood in for him and then Cushing’s face was digitally recreated. The effect has been done on a smaller scale and with non-human faces (Gollum in the Lord of the Rings) but never to this extent to recreate the face of an actor who had been dead for 22 years.
As a lawyer, I couldn’t help but ponder, as I was otherwise greatly enjoying the film (a film critic I’m not, but I’ll likely be making a return trip to the Strand to see the movie again) what the legal ramifications were of bringing an actor- an actual person, not just a fictional character — back from the dead.
My mind swirled through copyright, trademark and publicity law so much that as my family and I headed across the street to Mi Cerrito for dinner after the movie, I couldn’t help but break our “no electronics at dinner” rule to start doing legal research for this column.
The first step in answering that legal riddle lies in copyright law. This is an easy area for the film studios. Copyright law is federal in the United States so there is just one set of laws for the film companies to worry about. The copyright protection over the stories and the characters is owned by the film companies or by the original creator of the idea.
Thus, if Disney wants to do an animated Star Wars TV series in which Grand Moff Tarkin is a character, they are free to do so because they own the rights to the character and the story surrounding him. They don’t have to pay the actor who originally portrayed the character in order to keep using the character.
But in some places, the actors do have ongoing publicity rights, and this is where it gets very, very complicated for the movie studios. Publicity rights are matters of state law and, as a result, there are 50 different versions of the law.
Two states, one of them the media center of New York, recognize no publicity rights at all. In others there is an ongoing right that lasts 50, 75 or even 100 years after a person is dead. One state, Tennessee, says the right is perpetual. In Ohio, the period of protection over a person’s name, voice, image, photograph, likeness or distinctive appearance is their life plus 60 years.
Other countries have different laws in this area. The United Kingdom, where major parts of the Star Wars films have been shot, has no such laws at all. But the problem for the movie studios is that they intend to show the film all over the world and in all 50 states. As a result, the smart movie company will have its lawyers negotiate a contract with the living person or, with the person’s heirs, setting a negotiated price for the use of their likeness.
But this is the law we’re talking about; so there’s one more wrinkle. In the U.S., federal law is superior to state law. The studios could claim that federal copyright law supersedes state publicity law and they shouldn’t have to pay at all.
And that’s a legal battle that looms not a long time from now, in a land not very far away.
David Hejmanowski is Judge of the Probate/Juvenile Division of the Delaware County of Common Pleas.