Joanne Frears gives an insight into an increasingly common phenomenon - necromarketing - with reflections on the little law that applies
By: Joanne Frears
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 (www.forbes.com/dead-celebrities/#7df4ef826a51). 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 annually.
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.