Necromarketing and Delebs – A Guide

February 17, 2017

Since the mid 1990s deceased celebrities (known
in the industry somewhat disrespectfully as ‘delebs’) have haunted our screens
to sell us products in ways that might have them turning in their graves.  The reason for the rise in necromarketing is
often quoted as being the need for the baby-boomer generation to stay connected
with their heroes, even when they have shuffled off the earthly stage. Whilst
this might be true, my own cynical suspicion is that agents and production
companies like reliable celebrities who don’t take sick days, who don’t delay
filming whilst in rehab, who never age or change their appearance, whose
reputation can’t be tarnished in a Twitter storm and who do exactly what is
required in one take. Such a diligent celeb used to only inhabit producers
dreams, but they now exist in data files across the post-production world.

Posthumous and retro-marketing agents often
own the entire rights to or at least hold significant stakes in celebrity
estates. The rights to Marilyn Monroe, Elvis Presley and Steve McQueen are
commercially managed whereas the estates of Albert Einstein and Farah Fawcett
(two names you may never see in the same sentence again) are owned and managed
by universities and these managers are given absolute authority to determine
how the deleb’s images are used, what products they endorse and what new
‘roles’ they are cast for post mortem.

Most celebrity estates see an initial rise
in interest after death and in the year that follows, as people remind
themselves of the artist’s work and reconnect with them digitally. Michael
Jackson was said to be deep in debt at the time of his death, but one year on
from his death, his lawyers had secured $100m from surging record sales and
necromarketing deals and he has topped the Forbes dead celebrity income list
every year since then ( Last
year David Bowie was the highest selling artist in the reinvigorated vinyl
charts and had 5 albums in the top 30, proving that death is no obstacle to
continued fame and posthumous marketing is now said to be worth around £2.5bn

Not only can celebrities be recreated on
screen, they can be resurrected on stage ‘live’ at concerts and festivals.
Whether it’s on stage or screen, the resurrection process usually begins with a
look-alike actor, body double or sometimes even a family member who shares the
same height, weight and general body characteristics as the deceased, being
filmed in the scenes or staging environment the producer wants to recreate.
Working from previous analogue or digital imagery of the celebrity, the
programmers use facial action coding systems to map the deleb’s image onto the
stand-in actors body and face, using hugely time-consuming and costly CGI. A
very real risk is ending up with a ‘better than life’ version of the deceased
and producers require strict creative control to avoid this – the
specifications for this element of the work alone can run for pages as can cost
overruns and contracts need to address a plethora of ‘what ifs’.

Stage-based resurrections (or even a living
celebrity appearing with multiples of themselves) are often referred to as 3D
holographic projection. This is usually a misnomer though and whilst there is
undoubtedly clever programming used to recreate the deceased celebrity for ‘resurrection’,
such ‘projections’ are usually not ‘holographic’ and rely instead on the
Victorian illusion of Pepper’s Ghost. Using vast ‘foils’ (which to the
uninitiated look for all the world like vast rolls of heavy duty cling film,
10+ metres wide) that are suspended above the stage and giant mirrors placed at
angles under the stage, a deleb can be brought back in a seemingly impossible
performance, complete with all their corporeal stage craft and ‘as if they were
there’ sound production – think Tupac at Coachella or Michael Jackson at the
MTV awards and if you haven’t seen these impossible performances, check out
YouTube . But whether it’s high winds at Coachella or a summer deluge at
Glastonbury, there needs to be onsite backups and disclaimers that deal with
everything from sound wave distortion which causes the giant ‘foils’ to rip, to
dealing with technical access to clean the mirrors of beer spatters. Clients
entering this field or procuring installations should be specific about what
they want, consider the specific terms of art over the marketing ‘blurb’,
consider the required durability and resolution and be very clear whether they
genuinely require a hologram or a 3D projection. 

In the US, the death of a celebrity does
not prevent posthumous registration of their name under trade mark law,
provided that the application is made by the deleb’s heirs, estate or rights
owner.  Specific State laws offer wider
protection reflecting more ‘local’ needs. Californian law gives heirs control
over actors’ posthumous profits by requiring permission from the heirs for any
of use of the deceased’s likeness. Under the Indiana Right of Publicity Law, a ‘personality’
(someone who personally possesses specific qualities of commercial value due to
their name, likeness, mannerisms, image, signature, voice etc) is protected
against unauthorised use during their lifetime and for 100 years post-death.

At the opposite end of the spectrum are
celebrities who put non-resurrection clauses in their wills. According to court
documents filed when Robin Williams died, his will banned use of his image for
commercial means until 2039 and he specifically prohibited anyone from
digitally inserting him into a movie or TV scene or using a hologram of him.
This is not surprising as brand dilution is a genuine problem for delebs, as
fans often proliferate deceased celebrity images post mortem. Although it may
seem counter-intuitive to take action against the very fan base the estate
relies on to perpetuate and ‘honour’ the deleb, strict rules and use guidelines
do need to be observed, as once the magic is lost, the genie cannot be put back
in the bottle.

It is not entirely clear how English law
views resurrection IP as it doesn’t specifically recognise celebrity or image
rights and protects imagery created during the performer’s lifetime, not after
they have died. In most cases the estate or marketing agent will retain rights
in the deleb’s name and image and license them to the producers, but the
producers will own the CGI version of the deleb – usually via a copyright
assignment from the post-production or technology company which will then be
protected as a new ‘work’, minus the performance rights. The nearest the
English courts get to images rights are privacy rights, mostly under human rights
laws and these don’t apply post mortem. So in the case of deleb marketing, in
the UK at least, we largely rely on CAP, Ofcom and a national sense of good
taste and outrage.

In the world of Twitter and Instagram,
perhaps it’s time for the law to recognise personality rights and to extend
these post mortem. The Indiana definition of ‘personality’ is a pragmatic one
and proposes a level of fame the person must have achieved to secure
protection. Perhaps the answer to the issue of how to provide better protection
for impossible postmortem performances is simply a commercial one; the rights
of a person will be protected for a period after death if another person is
willing to pay a premium for the deceased to appear in film, advertising,
social media, live concert resurrections etc. I suspect that the English legislature
won’t see a need to provide additional protection for deleb rights until
Princess Diana is seen ‘haunting’ the aisles of Aldi buying Prosecco (perhaps
with Prince?!). If it did though, the protection could be more limited in time
and, by applying  the principles of
‘reputation’ we use in passing off to determine whether a party qualifies as celeb
or deleb, we could regulate this field and better protect the rights of some of
our recently deceased national treasures.

Joanne Frears is a partner at Blandy &
Blandy in the Corporate & Commercial team, specialising in intellectual
property and technology.