Use Your Illusion: Rights in posthumous holographic performance

02 November 2020

We recently provided an overview of the legal considerations that have arisen from artists moving their performances online into videogames as a result of the ongoing pandemic. However, performances from virtual avatars aren't limited to the online world. When global pandemic restrictions lift and venues all over the world once again welcome live audiences, virtual avatars (in the form of holograms) will be on the marquee. Thanks to hologram technology, music fans will be able to see Whitney Houston perform in concert and on stage almost a decade after the singer's untimely death. Houston is not the first artist to be re-animated through this illusion. In the years since Tupac Shakur's holographic resurrection at the Coachella Music Festival in 2012, Michael Jackson, Elvis Presley, Frank Zappa, Buddy Holly, Roy Orbison and opera great Maria Callas have all made posthumous appearances on stage.

Beneath the surface of these holographic performances are a web of legal rights, often owned by different parties, including copyright in the underlying sound recordings and musical compositions, patent rights in the enabling technology, personality rights of the artist(s), plus the added legal layer of the deceased's estate.

The creators of holographic performances require extensive coordination with the owners of the various rights that are being exploited. So far, litigation has been rare in this new realm. However, players in this burgeoning industry should consider what permissions are needed to create their holographic acts and who will own the rights in the finished product.

The anatomy of a hologram

Presently, holograms of deceased artists are often created in one of two ways. The first method involves compiling archived photographs and video footage of an artist to create a completely new virtual performance – one that never happened in real-world. This was the method used to create the notorious Tupac hologram.

The second method employs a combination of fresh footage and archival material. The hologram creators start with an actor who serves as a body double of the original performer. The actor provides fresh footage to the creators by replicating past performances and creating new performances filled with the celebrity's nuanced body language and gestures. This footage is combined with archival footage of the celebrity to create a digital composite.

Regardless which of these two methods are used, the resulting holographic performance presented to audiences is subject to a bundle of rights that must be considered.

Are holograms protected by the Copyright Act?

The Copyright Act grants protection to several categories of original "works".[1] Perhaps unsurprisingly, holograms are not explicitly mentioned in the Copyright Act, however holograms share many features with types of works that are named in the Act. As described above, the constituent elements of holograms can include archived photographs and video footage as well as recordings of a body double. Photographs are categorized as artistic works in the Act. The video footage and new recordings would likely fall into the category of cinematographic works, which is a sub-category of dramatic works, both of which terms are defined in the Act. A hologram that consists of a selection of these constituent works may meet the definition of a "compilation" under the Act that is itself entitled to copyright protection.

The Act states that a cinematographic work includes any work expressed by any process analogous to cinematography, whether or not accompanied by a soundtrack.[2] Whether a hologram is considered to be a cinematographic work or some other form of dramatic work could have significant implications with respect to the rights that are available and how those may be exercised.[3]

Is the holographic performance also protected by the Copyright Act?

The rights in and to a performer's performance are part of a category of rights known as "neighbouring rights" (although this term is not used in the Act). Neighbouring rights have been said to "derive their name from the fact that their origins are to be found in the neighbourhood of copyright. They differ from copyright in the extent of protection afforded by them, and with regard to the subjects to which they relate."[4] Neighbouring rights also include performance rights in sound recordings and communication signals.

In Canada, copyright interests in performer's performances are granted by section 15 of the Copyright Act.[5] While the Act offers a definition of a "performer's performance,"[6] and the content of the right is defined,[7] it does not offer any definition of the term "performer". In a traditional performance, this omission would not likely raise an issue, as the identity of the performer or performers is typically obvious. However, as technology blurs the lines, the identity of this person or persons may become contentious.

The Act states that the performer is the first owner of the copyright in that performer's performance.[8] The owner of such a copyright may assign or license their proprietary rights to another entity.[9] However, if the holographic performance is considered to be a cinematographic work and the performer authorizes the embodiment of their performance in the holographic performance, the Act explicitly restricts their exercise of copyright in their performance embodied in that work.[10] Given the complex interweaving of rights, it is important that any issue as to who owns the rights to the performer's performance be pre-emptively resolved through contractual arrangement.

If the agreements between the various rights-holders fail to clearly set out ownership of the rights at play in the hologram, fans may miss out on seeing and hearing 'new' and 'original' performances by their favourite late artists. For example, Houston's estate was able to delay her hologram tour after previewed footage caused a dispute among rights-holders who were concerned with preserving the value of the deceased singer's brand. Though the parties involved eventually resolved the matter, due to the COVID-19 pandemic, many of the international tour dates have been canceled.

Ghosts of music future

Whether the deceased celebrity hologram industry is the future of entertainment or a fad remains to be seen, but use of the technology in the industry continues to grow, even among the living. ABBA, the legendary Swedish super-group who broke up in 1982, are reuniting with the plan to release new material and send their holographic avatars on tour once pandemic restrictions lift.

Given this trend, other living contemporary artists might consider banking their own movements and images in order to control and preserve potential value, whether for themselves or their heirs. Likewise, companies that engage in holographic productions should consider how to acquire the necessary underlying rights and to preserve their own rights as they enter into this new frontier of entertainment. Engaging all potential stakeholders in successfully creating and touring celebrity holograms requires unique contractual agreements across rights holders. If you are one of these stakeholders, you should consider seeking legal advice from someone who can identify, secure and protect those rights so that your real and realizable value become more than just illusory.

[1] Copyright Act, RSC 1985, c C-42, s 3 ["the Act"].

[2] Copyright Act, RSC 1985, c C-42, s 2.

[3] See Copyright Act, RSC 1985, c C-42, s. 17(1), further discussed below.

[4] Robert W Judge, "Protecting Performers' Performances in light of the Canadian Charter of Rights and Freedoms" (1987) 13 CPR (3d) 1 at 4, citing Ulmer, "The Rome Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations", Bulletin of the Copyright Society of the USA, Vol X, No 2 (December 1962), p 165.

[5]Copyright Act, RSC 1985, c C-42, s 15.

[6] Copyright Act, RSC 1985, c C-42, s. 2.

[7] Copyright Act, RSC 1985, c C-42, s. 15

[8] Copyright Act, RSC 1985, c C-42, s. 24.

[9] Copyright Act, RSC 1985, c C-42, s. 25.

[10] Copyright Act, RSC 1985, c C-42, s. 17(1).

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.