An interesting aspect of the latest Star Wars film - ‘Rogue One - A Star Wars Story’ has been the use of digital actors and the potential future ramifications of such technology, not least legally with respect to the rights of an actor to control the commercial use of his or her name, image or likeness.
If you have not seen this film, we should warn that this article will contain spoilers.
Those who have seen Rogue One may have noticed that its production company, Lucasfilm Ltd, utilised a computer-generated version of Grand Moff Tarkin as well as a computer-generated Princess Leia based on how these characters looked in the 1977 original Star Wars film where they were played by Peter Cushing and Carrie Fisher respectively. Grand Moff Tarkin is onscreen in several scenes in Rogue One whilst Princess Leia appears briefly at the end of the film.
The concept of casting digital actors is itself not entirely new and has been used within a variety of commercials, some may recall, for instance, a computer-generated Audrey Hepburn advertising Dove chocolate (commercial below):
Likewise, the technology has been utilised in film and television for a number of years. Two notable recent examples are the resurrection of a digital Paul Walker for certain scenes in Furious 7 and a young Robert Downey Jr and Michael Douglas for Captain America: Civil War (clip below):
Whilst 2D techniques have been used that included mixing together previous and unused footage (such as in Furious 7), the effects in Rogue One see a more complex move towards full 3D modelled digital actors that can survive the scrutiny of close-ups. Without a doubt, the process of creating believable computer generated representations of humans is, however, both time-consuming and expensive at present and is further complicated when trying to recreate the likeness of a deceased actor, in the case of Peter Cushing in Rogue One, the few minutes of footage used took around 18 months to create. Whether the VFX artists succeed in crossing the ‘uncanny valley’ that many CGI character can give off varies depends on who you talk to, though here at Creative Artists Law we certainly found it an impressive step forward that fooled some in our viewing party that were not Star Wars fans.
It is not too hard to imagine a future, where, much like current computer-generated children's cartoons use motion capture actors in body suits along with voice actors to bring stories to life, that such techniques will be adapted for general motion pictures to recreate deceased actors or to de-age living actors in major roles.
So, what of the legalities of digital characters? As it stands today, an actor's publicity (or personality rights are they are also known) vary from country to country and in some countries from state to state. In California, for instance, the protection afforded to actors with respect to use of their likeness is 70 years following death, however, in the United Kingdom no such publicity rights have developed. In the case of Peter Cushing, who was English,
Lucasfilm sought the consent of the deceased actor’s estate.
In Australia, there is no law of personality akin to what is found in the United States, so, in the absence of an agreement between actor and studio, remedies for actors or celebrities who are unhappy with the use of their name, image or likeness are splintered, complex and limited. Some remedies do exist through defamation, consumer laws (misleading and deceptive conduct), and the law of passing off. To date the case law has focused on sporting celebrities and films. To a limited extent, some protection can also be afforded by trademarks, though trademarks are not an ideal vehicle for such a purpose as the courts have noted.
It is interesting to note that some experienced actors have already created their own digital scans of themselves, for example, when filming Oblivion, Tom Cruise had himself scanned, the data hand-delivered to his house and all other copies of the data destroyed. The commercial value of use such data is only set to increase and it is perhaps unsurprising that both studios and actors are thinking ahead to future contractual negotiations.
Ethnical questions also surround digital actors and the issue has come to the forefront again with the recent death of Carrie Fisher, who played Princess Leia/General Leia in the franchise. Prior to her death, Lucasfilm, had scanned Fisher's present day likeness as well as that of other major actors in the franchise (though some reports suggest this may not have taken place), much like what Marvel had done with respect to their cinematic universe of superhero actors. Carrie Fisher once even joked “Every time I look in the mirror, I send a few dollars to George Lucas.” Lucasfilm, however, have stated that they have no plans to resurrect a computer-generated Princess Leia in Episode 9, the final film of the new Star Wars sequel trilogy (filming of Episode 8 of Star Wars had already wrapped at the time of Carrie Fisher's passing).
In the end, digital actor technology is still in its infancy as indeed are legal protections of actors in respect of such technology. The issues are many and varied covering intellectual property, commercial contracts and estates and it will certainly be an interesting area of the law to follow as the technology develops.
This information is intended for guidance purposes only and does not constitute legal advice. If you do need legal advice, however, get in touch with us!