Toward Eternal Fame

In today’s hyper-speed, image-obsessed culture, fame is an overwhelming force.

Measured in clicks, views, follows, likes and detailed influencer metrics, fame can now be quantified in raw numbers that brands, advertisers and content producers love.

Celebrities can make or break product launches. They can influence voter choices (heck, they can claim the presidency). They can give new life to obscure social causes. From our very stable geniuses to our crazy Yeezy’s, celebrities are the heroes and demi-gods of a society that pretends to no longer believe in either. They can sway millions with one well-placed Tweet, and it doesn’t need to make much sense. In the modern world, that’s power.

Legally, celebrity brands are largely monetized via so-called “image” or “publicity” rights. Put simply, uses of their name, image or likeness must be pre-authorized. With local variations – sometimes through privacy rights – image rights are generally recognized around the world.

But until recently, these rights were considered “personality” rights: when the person they belonged to passed away, the rights expired.

A couple of trends have recently put pressure on this.

First, technology can now bring people back to life. The infamous Tupac hologram was just the beginning. CGI, AI and 3D hologram technologies are improving so fast, we soon may not be able to tell the difference between real actors and musicians, and their tech-mediated avatars.

Second, prominent aging icons have been passing at alarming rates. Bowie, Prince, Leonard Cohen, Gordon Downie, George Michael, the list goes on. There’s a sense it’s growing faster than we expected it to – even though it’s well established that celebrities tend to have shorter life spans than regular folks do.

Since older celebrities come from a time where media consumption was more shared and concentrated, they can be very broadly known and recognized. Theirs are some of the most valuable and enduring celebrity brands.

If image rights completely died with the person, content producers could get the benefit of their cultural magnetism without the cost. Ventures could use these valuable symbols for free.

In the face of this, there is a trend – if somewhat trickling, and inconsistent – to make these rights “patrimonial”. They would then survive past the death of the person, and be managed and monetized by their estate – much like copyrights are.

Unsurprisingly, the State of California has been the leader in this area – matching up image rights with the duration of copyright. The law now allows individuals to decide how their image will be used for up to 70 years after death. With this in place, celebrities can use their wills to control their image after they pass. For instance, Robin Williams prohibited the use of his persona for commercial purposes until 2039, and banned all future digital depictions and holograms of him.

The situation in other states is spotty – posthumous publicity rights are only recognized in 33 states. Moreover, states have very different conditions surrounding these rights: some require the deceased celebrity have residence in the state to get protection, others don’t. Some require registration, others grant them automatically. And so on.

In the states that don’t recognize these rights at all – including New York, no less – brands and content-producers may legitimately use these valuable “deleb” images for free – at least for local use. National campaigns, of course, typically have to respect the most stringent norms, because they’re subject to all of them. Global campaigns tend to have even more regulatory constraints.

Around the world, it’s a mosaic of even more variable and inconsistent rules. In Germany, the duration of posthumous rights is 10 years – but the protection is quite solid. In Canada, their duration is 14 years, but there’s still debate as to which uses are covered. Many European countries still don’t recognize “commercial” posthumous rights. The U.K. probably doesn’t protect posthumous publicity rights at all. France definitely doesn’t.

There are clearly opportunities for commercial ventures – particularly the most tech savvy ones – to use powerful deleb images in various capacities, without having to compensate the person’s estate. Copyright was originally given patrimonial protection in part because it was recognized that the works created by authors gave society value way past their death.

In an era where technological revival gets more and more viable, can the same be said of their image?

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