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Note: This question includes slight spoilers for Rogue One: A Star Wars Story

In the recent addition to the Star Wars franchise Rogue One, there is a scene depicting Princess Leia as she appears in Episodes IV, V and VI. Rather than hiring a look-alike, the studio opted instead to digitally recreate actress Carrie Fisher's face circa 1977 when Episode IV was filmed.

The actress presumably consented to this, but say she hadn't? Now that Carrie Fisher is no longer able to play the part for Episode IX, there is a good chance this technique will be used again to recreate her older face. A similar process was used in The Fast and the Furious 7 for the final scene, which hadn't yet been filmed upon the death of actor Paul Walker.

Is there legal precedent over one's rights to one's digital image? If a talented animator were to create, say, a music video featuring the digital image of a dancer who wasn't present to film the video, could he or she be sued for infringing upon the natural copyright of the dancer? Would this right pass to the estate upon death, so could Carrie Fisher's estate legally consent to her digital reproduction?

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Copyright to an image, digital or otherwise, is held by whoever creates it. In a movie, the question of who created the image could be complicated (is it the cameraman, the director, the producer...?), but is simplified by the fact that the item being created is a work for hire. Under copyright law, the entity that employs the various individuals has hired them to create the image, and thus the studio owns the copyright. It is always possible that there is a specific contractual arrangement where the director or someone else retains certain rights, whereby the person that the image is of might retain some special contractual rights, but that would be special. Whoever owns the copyright to the movie then has the right (within any contractual limits) to make derivative works, including recycling images into a later work. There is no copyright in/to a person, only to an image or book about a person, and it's the creator of the image or book who holds copyright. The level of creativity required to gain copyright in a derivative work (such as embedding a picture in a film) is substantial enough that the derived image would also be protected by copyright.

There is another source of limit on such a right, which is a person's publicity right. This is a property right to control how your name and image can be commercially exploited (since it is a property right, it persists past death). These rights are determined at the state level. There are, again, typically contractual clauses the spell out what control a person in a film has, and there is little chance of being able to inspect the contracts of actors in movies. There is no realistic possibility that the Star Wars movies were founded on contracts without personality rights clauses, so we can be certain that all of the agents in the films consented to being commercially exploited. There is, however, a non-negligible chance that a good lawyer could argue that a particular exploitation wasn't consented to. In some (low budget) other non-Star Wars case, it is possible that the guys in charge didn't include a good assignment of personality rights, in which case further exploitation of images would require permission (subject to the variation that one finds in state law); the estate would grant or deny such permission, in the case of a deceased actor.

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    Just to clarify, I am asking about digitally constructing an actor's image and actions, without the actor himself being present to do the acting. Beyond one's publicity right, couldn't it be argued that any digital reproduction of a person is a derivative work of the person himself, and because any reproduction good enough for modern film by necessity would need to be substantially identical to the original, the reproduction lacks the originality necessary for the work to vest its own copyright separate from that of the original? – TheEnvironmentalist Jan 6 '17 at 18:21
  • @TheEnvironmentalist Probably not. A person cannot be copyrighted (although arguably a "persona" can be which is the subject of some legal disputes involving The Daily Show). But, the publicity right has always covered paintings from memory, which, like a digital construction without involvement of the actor, would be covered. The personality clause in the contract with the actor would often be limited to use in the current movie or products derivative of the current movie, and would often expressly exclude uses in future movies without further consent. – ohwilleke Jan 6 '17 at 19:17
  • @ohwilleke So if I, as a supposed editor of the Star Wars franchise, decided to have young Han Solo deliver a political speech in favor of Trump as part of promotional material for Star Wars Episode VIII, I would have every right to do so as the material is derivative to the current movie? I could in theory have any actor in any production say anything I choose, in a way essentially indistinguishable from the actor himself stating such things. This seems a dangerous slippery slope to Hollywood delivering "launch the nukes" speeches with the President's image delivering them. – TheEnvironmentalist Jan 6 '17 at 22:19
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Copyright law is the wrong place to look for the answer, because the production company or studio would usually own the copyright to the original work and have the right to make derivative works based upon it. But, that wouldn't be the end of the story.

There is a separate common law tort for "commercial appropriation of a person's name or likeness" which is usually considered to be one of the privacy torts even though it looks more like an IP right in one's own image in practice. See Restatement of Law (Second) Torts § 652C. This states:

652C Appropriation of Name or Likeness

One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.

Comments:

a. The interest protected by the rule stated in this Section is the interest of the individual in the exclusive use of his own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or to others. Although the protection of his personal feelings against mental distress is an important factor leading to a recognition of the rule, the right created by it is in the nature of a property right, for the exercise of which an exclusive license may be given to a third person, which will entitle the licensee to maintain an action to protect it.

b. How invaded. The common form of invasion of privacy under the rule here stated is the appropriation and use of the plaintiff's name or likeness to advertise the defendant's business or product, or for some similar commercial purpose. Apart from statute, however, the rule stated is not limited to commercial appropriation. It applies also when the defendant makes use of the plaintiff's name or likeness for his own purposes and benefit, even though the use is not a commercial one, and even though the benefit sought to be obtained is not a pecuniary one. Statutes in some states have, however, limited the liability to commercial uses of the name or likeness.

A broad overview can be found in lecture slides here. The modern trend is that the right survives death, but there is a split of authority over that question. There is also an equivalent to fair use protection under the First Amendment, but that wouldn't be applicable in the kind of case discussed in the question.

The case that created it involve some who was used as a model in a prominent logo or advertisement for a product sold in stores (IIRC it was oatmeal), who did not consent and was not paid for being the model. The Court held that there was a common law right to compensatory damages for the profits unjustly obtained without consent from the commercial appropriation of the individual's image.

Of course, you are correct that Carrie Fischer almost certainly contented to and was paid well for use of her image in Rouge One. But, actor contracts with a movie production company regarding this kind of use would vary greatly and one of the reasons that Disney probably compensated her and obtained her consent rather than taking a hard line with her and trying to use her image without her consent based upon past contracts, is that they would have believed that they would need her willing cooperation as a major supporting character in two more movies.

The harder case is one where rather than using a manipulated image from a prior movie via CGI, they instead use an exact clip from a prior movie that was consented to and paid for, in a future movie. This too, however, would turn on interpretation of the contact between the actor and the production company, against the backdrop of the commercial appropriation tort claim.

Not every country and not every U.S. jurisdiction has adopted §652C or the equivalent as part of their law. But, it is the law in all of the U.S. states that are central to the movie making business. Usually, an express choice of law provision in the contract between the actor and the production company would choose one of those U.S. states (usually California or New York) as the one governing the contract between the parties.

  • @ohwilleke So in, for instance, the case of the Kanye West music video featuring the naked wax likenesses of a number of prominent figures, most of whom did not consent to (or indeed, were even made aware of) the use of their likenesses, should one decide to sue, what would be the basis for the suit? – TheEnvironmentalist Jan 6 '17 at 22:27
  • @K-C I don't have data on multi-movie series in particular, only a general familiarity with the practice in the movie industry usually involving a single movie. – ohwilleke Jan 6 '17 at 23:08
  • @TheEnvironmentalist The issue in such a suit would be right of publicity v. free speech. There would be a decent basis for such a suit, although it wouldn't be a sure thing. – ohwilleke Jan 6 '17 at 23:09

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