Image protection: life after death

Where do brands draw the line when using an actor’s image after their death?

Over the years many businesses have used actors to advertise products from perfume to chocolate.

For example, in 1960, Marilyn Monroe was interviewed by fashion magazine Marie Claire to promote her film “Let’s Make Love”.

During that interview the magazine captured Monroe saying: “What do I wear in bed? Why, Chanel No. 5, of course.”

In 2013, French luxury fashion house Chanel produced an advert which starred Monroe posthumously speaking her famous phrase.

The advert was made with permission from her estate.

Conversely, it was reported that actor Robin Williams’ estate filed a deed before his death which contained a detailed description of how he intended his image to be used in any publicity after his death.

He restricted the use of his image until 2039. Williams passed on the rights to his photograph, signature, name and likeness to the Windfall Foundation, which was set up in his name.

Publicity rights enable actors to have an element of control over how their image is used by their estate before and after their death.

Rights of publicity, or personality rights, are “available to a well-known personality or celebrity to protect them from the unauthorised use of his or her name, image, signature or persona without permission or compensation”, according to website lawteacher.net.

Rights of publicity differ in every country, and in the US the rights are based in state law.

For celebrities, rights of publicity can concern the infringement of trademarks and copyright owned by the individual, false endorsement claims and the false representation of the individual’s identity.

Movies after death

Posthumously using an actor’s image isn’t limited to advertisements.

In December 2016, the “Star Wars” franchise was back with another instalment, “Rogue One: A Star Wars Story”.

There was one controversial addition to the cast, Peter Cushing, in a digital recreation.

“Rogue One” is set immediately before “Star Wars: Episode IV—A New Hope” and centres on the rebels’ mission to steal plans for the first Death Star, the Galactic Empire’s moon-sized super weapon.

Cushing starred as the character Grand Moff Tarkin in “A New Hope”, which was released in 1977. Tarkin was the commander of the Death Star and governor of the Imperial Outland Regions.

Cushing died in 1994 and the actor’s posthumous appearance in “Rogue One” was criticised by fans and critics.

However, on January 16, “Rogue One” visual effects supervisor John Knoll defended Cushing’s appearance in the film and told Yahoo Movies: “What we had Tarkin doing in this film I think was entirely appropriate narratively for this story.

“This was done in consultation and cooperation with his estate. So we wouldn’t do this if the estate had objected or didn’t feel comfortable with this idea,” he added.

Evidently Cushing’s estate was happy for his image to be used in the film, and the estate will probably have been given some monetary relief for his role—so was the criticism unwarranted?

Gary Assim, partner at law firm Shoosmith, says the issue of whether an actor who has died can be recreated by CGI or other technology to appear in films, videos or music is down to what contractual stipulations or protection the actor had in place before they died. That protection is enforced by the deceased actor’s estate, and if the actor had chosen to allow a CGI image to be used in a film, then the estate’s decision to object should be questioned.

Continuing role for Leia

“Star Wars” fans lost another actor, on December 27, 2016. Carrie Fisher, best known for her role as Princess Leia in the film franchise, passed away after heart attack. In 2015 Fisher starred as Leia for the first time in 30 years. A CGI version of 19-year-old Princess Leia was also recreated in “Rogue One”.

Before her death, Fisher had reportedly finished filming for “Star Wars: Episodes VII”, which is due to be released in December 2017. However, her death prompted questions about her continued appearances, if any, in the film franchise.

Aged 19, Fisher signed away her likeness for free to George Lucas while working on the first “Star Wars” film.

She told The Guardian in 2011: “The mistake was I signed away my likeness for free. In those days, there was no such thing as a ‘likeness’.

“There was no merchandising tied to movies. No-one could have known the extent of the franchise.”

Larry Zerner, founder of the Law Offices of Larry Zerner, says: “Fisher may have said she gave it away for free, but bear in mind this movie comes between part seven, for which I’m assuming she got paid millions of dollars, and part eight, for which she got paid millions of dollars.”

"rights of publicity can concern the infringement of trademarks and copyright owned by the individual, false endorsement claims and the false representation of the individual’s identity."

On January 13, the Walt Disney Company, which owns Lucasfilm, the producer of “Star Wars”, released a statement about the continued use of Fisher’s image.

The statement said: “We don’t normally respond to fan or press speculation, but there is a rumour circulating that we would like to address. We want to assure our fans that Lucasfilm has no plans to digitally recreate Carrie Fisher’s performance as Princess or General Leia Organa.”

Assim says Disney is entitled to use her image in “Rogue One”, but in the contract she signed there may be some percentage of the proceeds made from those films to which her estate will be entitled.

“If that is in her contract then Disney as the current owner of Lucasfilm will have to agree with her estate what that percentage is.

“It’s interesting that they’ve come out and said they’re not going to use her image because I think that may have some impact on what might happen to Cushing.”

Assim adds that after making a deal, Disney may come out with a statement later, in order to combat disapproval, which says: “We have agreed with Carrie Fisher’s estate for reasonable royalties to be paid and therefore we are going to use her image in other subsequent films.”

Image rights in Guernsey

The US is not the only jurisdiction where actors can control their image.

In Guernsey, a British crown dependency in the English Channel, image rights legislation enables a person to register their personality (and the rights that subsist within that personality).

Personality rights, Assim explains, are “not immediately like a trademark, copyright or a patent, unless you register your name as a trademark, such as ‘Elvis Presley’.

“You have to create your portfolio of IP rights, in order to have an IP impact,” he explains.

Assim adds that image rights include the “depiction of your face as the image”, and also your signature.

“If you have a particular well-known phrase or catchphrase, it can be part of your image; it’s almost anything that would link to you as an individual.”

He adds: “It’s probably easier now if you’re an up-and-coming actor because you can see what might happen in the future,” he argues.

Assim continues: “In the cases of Cushing and Fisher, image rights weren’t really known at that time. It was just, ‘can I use your face on a doll?’ or ‘can I use it in a DVD?’ All the things that were known at that time were fairly controllable because you had to create a physical model.”

Zerner agrees with Assim that in the 21st century, “more and more people will think about the issue”.

Personality rights provide challenges for businesses, filmmakers and advertisers because of the criticism they could face from fans after using a deceased actor in a commercial venture—even with permission from the person’s estate.