This may not be the most practical of our posts. Not everybody reading this will become totally famous, die and have their friends reincarnate them as a hologram. But keep dreaming. You never know.
To me it was somewhat exhilarating, mostly creepy. The crew of tattoed and bandanna wearing tough guys standing beside me were less reserved and screamed like little girls.
There’s clearly a market for this kind of thing. Suddenly any dead star can literally (almost) be resurrected to tour. John Lennon could return to the Beatles, Elvis could show up on stage with U2, Jimi Hendrix could play an encore with the Chili Peppers.
Forbes Magazine, among others, suggested the hologram phenomenon is the next big thing in entertainment. Forbes also explored the estate law implications. In this case, the show organizers sought and obtained permission to stage the hologram from copyright holders and from Tupac’s mother who controls Tupac’s estate. Thus, no legal squabbles arose from the performance. This made me curious about the Canadian law as applied to our posthumous hologram selves.
Intellectual property rights are protected and enforced across international borders. Although we could speculate, for the purposes of this post, that there are famous Canadians someone would bother to make into a hologram some day (our biggest celebrities of the modern era –Celine Dion and Nickelback–are still alive, as much as many of us may wish they only existed in hologram form).
So who owns the rights to one’s posthumous hologram self? The short answer, of course, is the person’s estate. Assuming your estate owns your copyright (and not some publisher or record company) your estate retains ownership of the rights to your two-dimensional image and the lyrics, music and performance rights to any songs you may have written during your life.
As with any estate asset the rights to your copyright (and presumably your hologram self) can be left in your will to anyone you choose. Even if you did not have the foresight to include this as a line item in your will your executor retains the right to negotiate license fees for the performances of your hologram self and distribute any proceeds among your beneficiaries. Enforcement of these rights is codified in the Canadian Copyright Act. But that’s not necessarily the whole package.
Consider this. As much as I may want to, I can’t stage a hologram Nirvana concert in my back yard without committing several copyright violations. But what if, by sheer hubris, I have my computer-nerd friends help me stage a concert whereby Kurt Cobain appears singing songs that I write, whilst copying my awesome dance moves and wearing a Canucks jersey, my favourite pair of slacks and a jaunty cap of my choice? Who owns the copyright to that performance? The outcome of the inevitable Courtney Love backed lawsuit is a little more difficult to predict.
In British Columbia, in addition to the Copyright Act, we have the Privacy Act. The Vancouver lounge, Section (3), is named after section three of the Privacy Act. The Yaletown bar changed its name from DeNiro’s after Robert DeNiro threatened to sue based in part on that provision, which reads:
(a) a likeness of another deliberately disguised to resemble the plaintiff, and
(b) a caricature.
(2) It is a tort, actionable without proof of damage, for a person to use the name or portrait of another for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf, consents to the use for that purpose.
In addition to what is protected under the Copyright Act, the Privacy Act protects the use of a person’s likeness, still or moving. As well, even if DeNiro were dead, his estate could bring the same lawsuit. The Estate Adminstration Act allows any action that can be brought by or against a deceased person during their life to be brought after their death (subject to some limitations and the usual limitation periods).
Notably, and not surprisingly, none of this legislation expressly contemplates the right to create and use a posthumous hologram. Arguably, the statutes are broad enough to apply to such performances. But the law may have to evolve to address this new phenomenon assuming the current media speculation is correct and this is the beginning of a new era of entertainment.
And, on that note, you may want to ask your lawyer to update your will to include a specific bequest of the rights to your posthumous hologram self. Just in case.
You never know.