(Gizmodo) It’s October 2022, five years after the death of Tom Petty, and you and your family have just arrived at the Hollywood Bowl to see the late musician’s digital resurrection.
It’s only lasers, of course, you know this, but as an ultra-realistic Petty zaps to life onstage, it’s a distant truth, washed away by a wave of nostalgia as he strums the opening riff of “Free Fallin’.” It isn’t until hologram Petty uncharacteristically endorses a line of salad dressings that the spell is broken, leaving you with some uncomfortable questions.
Is this what my beloved musical idol would have wanted? Who gets to decide if celebrities are turned into holograms after they die? And, most importantly, how can I stop it from happening to me?
To be clear, there are currently no public plans to turn Tom Petty into a hologram. However, stages have been haunted by the digital apparitions of Tupac, Roy Orbison, Buddy Holly, and Frank Zappa in recent years. Planned hologram tours by “Whitney Houston” and “Amy Winehouse” have also been reported, and in almost all of these cases, one important detail seems to be missing: the specific wishes of the late talent. That’s because, in the end, those wishes may not be legally binding.
Whether it’s for hologram tours or novelty lunch boxes, in the US your exclusive right to profit off your image is protected by something called “the right of publicity.” State-level laws prohibit the unauthorised use of your face by others for commercial purposes, such as product endorsements or branded merchandise. Around half of US states also recognize posthumous publicity rights, which means residents can pass down the commercial control of their names, likenesses, and personas (in a manner similar to property rights) when they die.
Attorney Joseph Rothberg, who has worked on commercial and intellectual property disputes, told Gizmodo that if you are domiciled in a state with strong posthumous rights of publicity, whomever controls your estate can enforce your publicity rights after you die. But even then, it will largely be up to them to decide how to monetise your likeness—as a hologram or anything else. “You’re dead so there’s not much you can do,” Rothberg said. And in states without those post-mortem protections, you’ll have even less of a say. “Once you die, your image is kind of a part of the public domain,” he said.
Whitney Houston’s estate, for example, included her posthumous rights to publicity when she died. Houston’s sister-in-law and former manager Pat Houston controls that estate, meaning she ultimately makes the call on how the late singer’s name and image are used.
“Everything is about timing for me,” Pat recently told the New York Times while discussing plans for a hologram tour, among other projects. “It’s been quite emotional for the past seven years. But now it’s about being strategic.”
Since most people aren’t noteworthy enough to draw crowds to their digital returns from the dead, this is an issue that will likely keep few of us up at night. But for celebrities who are outlived by their commercial value, it could be up to their heirs to decide the most respectful way to convert their likenesses into cold, hard cash.
When making decisions like these, brands and celebrity estates will often seek guidance from someone like Doug Bania, a principal at Nevium Intellectual Property Consultants, a firm that conducts valuation and financial analysis of publicity rights, among other things. Bania’s firm effectively figures out which product categories are a good fit for its clients, including the estates of famous people who have died.
“Occasionally, you’ll have celebrities who have written in a will or part of their estate planning, ‘Hey, after I die you can license my name out in these categories and not these,’ or, ‘You can’t license my name out at all,’” Bania told Gizmodo. “So it’s good if somebody’s planning an estate while a celebrity is alive to just get all that in writing.”
While Bania said he has yet to discuss posthumous holograms with his clients, his firm does consider categories like food, apparel, services, and documentaries. And he did express an interest in holographic tours, pointing out that fans might enjoy experiencing celebrities onstage again.
“I don’t think it’s a bad idea, but maybe for the estate the death was tough and it’s just time to put all this to rest, and respecting the estate’s opinion on whether or not that should be done is most important,” Bania said. “From a financial point of view, we would be brought in to determine whether a tour like that would be economically beneficial. We could help an estate figure out whether or not it’s a good idea financially, but death is an emotional thing and everybody takes it differently. Each estate, in my experience, is very different.”
It’s worth noting that this primary protection against unsanctioned hologram-ification, the right of publicity, only concerns how someone’s image is used for profit. If someone wants to create your digital double for personal purposes, it doesn’t apply—even if you’re still alive. The right of publicity also doesn’t govern the overall ethics of wanting to bring someone’s likeness back from the dead.
“Can we just recreate our relatives soon with AI in a robot and really good prosthetics?” said Rothberg. “It’s kind of a creepy thought for us in this day and age. I don’t know if there would even be a legal prohibition on a family member doing that at this time.”
Rothberg imagined a hypothetical future in which his descendants decided, “Well, we liked Joe, why don’t we put him into a new robot and have a new Joe robot around in the future so we can continue spending time with someone like him?” He wondered aloud if there was anything he could do to prevent such a scenario. Rothberg wasn’t sure he could.