The Messy Legal Fight to Bring Celebrities Back From the Dead

Last week, independent production company Magic City Films announced that it would be bringing James Dean back from the dead. Not literally, but digitally, using full-body CGI and existing footage and photos. The Rebel Without a Cause actor will become the secondary lead in a new Vietnam War film called Finding Jack. The two directors, Anton Ernst and Tati Golykh, said they searched for a suitable actor but, after months of research, Dean was chosen for the part.

Wired UK

This story originally appeared on WIRED UK.

The news has been met with a barrage of criticism from the Hollywood elite, with Chris Evans calling it awful and the lack of understanding “shameful,” while Elijah Wood just said “nope.” But James Dean isn’t the first entertainer to be digitally resurrected, and he certainly won’t be the last.

In 2017, Peter Cushing, who died in 1994, was brought back to life to reprise his role as Grand Moff Tarkin in Rogue One. Similarly, Philip Seymour Hoffman and Paul Walker, who both died during production of their respective films, were digitally re-created to finish their movies. Carrie Fisher was also famously digitally re-created for the ninth installment of the Star Wars saga.

On Tuesday, newly-formed IP licensing firm Worldwide XR announced that it holds the rights to more than 400 dead celebrities, actors, historical figures, musicians, athletes, and others. The lid of Pandora’s box has flung wide open, and we could be about to see a whole glut of dead celebrities reappearing on our screens.

Worldwide XR, which recently formed out of a merger between business and marketing agency CMG Worldwide and content creation studio Observe Media, says on its website that, besides having access to Dean, it also owns the rights to Aaliyah, Bette Davis, Bettie Page, Burt Reynolds, Chuck Berry, Ingrid Bergman, Malcolm X, and a whole lot more.

“We were being approached by some filmmakers who wanted to make their, movie and they wanted to hire James Dean,” says Worldwide XR CEO Travis Cloyd. “It was aligned with our objectives, and we did our vetting, and we read the script, and we talked it over with the family, and it just felt like it was a good time.”

Mark Roesler started CMG Worldwide in 1982 after finding that deceased celebrities had no one to represent them post-mortem. Roesler carved out a niche in representing the estates of dead stars, and the families of these celebrities began approaching CMG looking for representation. Elvis Presley and James Dean became the firm’s first two clients.

These representation rights give the company the “right of publicity” under the US-based state-by-state law, which is at the heart of dead celebrities’ image rights. The right of publicity was enshrined in Californian state law in 1985 and declares that the rights to use a celebrity’s image, including their voice and likeness, will be transferred to the deceased actor’s estate once that actor passes away, with any money from licensing going to the estate. Anyone wanting to use that actor’s image must gain permission from the actor’s estate.

Prince, for example, died without a will, and his estate is now held by estranged relatives, many of whom he was reportedly not close with. These relatives now control the rights to Prince’s post-mortem identity. Another example is model Bettie Page, who is one of the biggest dead celebrity earners ever and whose rights are owned outright by Worldwide XR. Her meteoric post-mortem rise occurred thanks to huge investment in her identity.

“Once you successfully represent one dead celebrity, other estates will look to that company that did well with someone else,” says Jennifer Rothman, a law professor at Loyola Marymount University and the author of The Right of Publicity: Privacy Reimagined for a Public World. “It’s also true that CMG has been very active in promoting these laws.”

Generally, says Rothman, Worldwide XR tends to strike licensing agreements with the estates of deceased celebrities, with the estate continuing to hold ownership of the dead person’s identity. “I suspect based on some filings in court that I’ve seen, that they’re very broad licensing, such that CMG has the exclusive right to represent the estate, to sue on behalf of the estate,” she says.

It doesn’t work everywhere though. In the UK, there’s no right to publicity, although other legal protections are in place to protect image rights after death. Films and expressive works are covered under the first amendment in the US, which means that movie studios are, technically, allowed to use images of public figures. There are some states that provide post-mortem protection and express their exemption for their use in various forms of media, like motion pictures, songs, plays, and novels.

Right-to-publicity laws also vary widely across US states. “In California’s case, the limit is 70 years after the death of the person in question. In Illinois, that term is 50 years after the person’s death,” says David A. Simon, a visiting assistant professor at the University of Kansas and a fellow at the Hanken School of Economics. “The differences are numerous between states.”

“But once the term of posthumous protection expires, the rights no longer exist,” says Johanna Gibson, a professor of intellectual property at Queen Mary University in London. Dean, for example—who died in 1955—is nearing the end of his 70-year post-mortem protection, which makes the announcement of the Finding Jack movie quite timely. But after that expires, the estate, and subsequently Worldwide XR, will lose the rights of publicity. Will it then become a free for all?

“That would make them fair game as long as there’s no confusion as to sponsorship,” says Rothman. “If they still have an identity that is being commercialized, such as their estate selling products and services associated with them, then that person’s identity could continue to be protected under US trademark and unfair competition law.”

Nonetheless, as the cost of advances in this kind of technology begins to decrease, digital resurrection and manipulation will inevitably become more common, with the assistance of celebrity estates. “Imagine a studio wants to create a movie but does not have the production budget necessary for sets, actors, studio time. Digital reuse may provide a low-budget option to produce movies that would otherwise not exist,” says Simon.

The actors’ union SAG-AFTRA has been lobbying for all states to implement protections on the use of images of celebrities after they die. “I think that’s a concern for the actor’s union, that this could be abused—though it hasn’t yet—in a way that would replace rehiring actors,” says Rothman. “And that’s concerning for the living.”

With the famous early 20th-century actors’ rights of publicity nearing expiration, we’re likely going to see old faces flooding holograms, screens, and games, and legislation will inevitably have to catch up with the technology.

There are ways for celebrities to protect their image from being reanimated for films post-mortem in the future. One notable case is that of Robin Williams. Before his death, the actor formed a trust and donated all of his rights of publicity—his name, likeness, voice, identity—to a nonprofit company. Williams also famously barred the commercialization of his identity for 25 years after his death.

Cloyd says that Worldwide XR wants to protect these celebrities’ legacies, so that third parties can’t come in and take control, adding that all consultation is done with the families of the deceased celebrities. “This is a way to celebrate their lives and the work of all the great people in history. “We definitely respect everybody’s opinion, and we don’t want people to be upset,” he says when asked about the backlash. “Essentially our job is to protect the best interests of the families that we work with. You never know what’s going to happen with those assets. Our intention is to protect and to create.”

This story originally appeared on WIRED UK.