The Volokh Conspiracy
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The 2013 movie, The Congress, envisions a world in which movie studios can own actors' names, voices, likenesses, and performances. Instead of betting on the next big thing, a major movie studio, Miramount Pictures, buys up and digitizes famous actors. The movie follows the film and television star Robin Wright, of The Princess Bride and House of Cards, as she is forced by financial hardship, aged out of coveted roles, to sign over her identity to the movie studio. The studio then requires her to go into exile, barring her from using her name, and showing herself in public. While the virtual Robin Wright makes new hit films, and even engages in press interviews about the personally-meaningful nature of her latest roles, the real Robin Wright must hide.
Technology already exists to make such reanimation of actors possible. So it is no surprise that actors and their union, the Screen Actors Guild (now SAG-AFTRA), worry about the danger such digital avatars pose to their livelihood. There are many good reasons to fight such wholesale replacement of actors, but one of the main legislative pushes by SAG-AFTRA across the country is exactly what makes possible the nightmarish scenario of The Congress. Miramount Pictures can only own Robin Wright if the law allows her identity to be transferable.
Paradoxically, SAG-AFTRA is traveling the country advocating for such a transferable right of publicity, making the right to one's own name, likeness, voice, and broader identity capable of being owned by others. Such laws jeopardize the freedom of SAG-AFTRA's own members, and place us all at risk. Making such rights transferable is dangerous, and makes it possible for each of us, whether actors or not, to lose ownership over our own identities.
Right now the epic battleground is in New York. The union wants the state to change its already existing right of publicity and privacy laws to make them transferable to others. This would make the right to control how names, likenesses and voices are used something that could be sold, signed away, or taken, potentially for the person's lifetime and even after death?as the proposed law would also extend the rights into the afterlife.
Such transferability is a feature of property rights generally, including forms of IP, like patents in inventions or copyrights in books and movies. But, the transferability of those forms of IP, whether voluntarily or involuntarily to creditors and ex-spouses, is not nearly as concerning as transferring one's own identity to someone else. Such an owner of your identity could block you from appearing publicly or from pursuing professional opportunities. They could also actively use images of you and your name on billboards, in television shows, and on cereal boxes without your approval.
Tellingly, the original calls in the 1950s and 1960s for such a transferable right in one's personality were led in part by studio lawyers looking for better ways to control and profit from actors. This was particularly pressing for them after the demise of the star system's long-term employment contracts in the 1940s, which courts had struck down as unconstitutional. A transferable right of publicity would enable producers to stop actors from making appearances the studios didn't like, and from doing endorsements or appearing on competing merchandise without studio approval.
It therefore is ironic that it is now SAG-AFTRA calling for such transferability. It will primarily be aspiring actors, voiceover artists, models, singers and other performers who sign away their rights, either unwittingly, or because such transfers of rights will be made a requirement to get an agent, or a recording deal, or a job.
Even if those up-and-coming actors wind up hitting it big and become famous, they may not be able to reclaim the rights to their own identities that they assigned early on in their careers, or they will have to pay a windfall to someone who is exploiting them to escape from under such assignments. Child-actors may be particularly at risk as parents may sign away the rights to their children's own names and likenesses, rights that the children cannot regain when they turn eighteen.
One of the driving forces behind SAG-AFTRA's perplexing advocacy for a freely transferable right is its effort to create postmortem rights for dead celebrities so that heirs and others (including corporations) can reap the rewards of income on the basis of these "delebs," long after they are gone. The economic value of such rights, however, is likely to be virtually zero for most of SAG-AFTRA's members. Elvis, Marilyn Monroe, Michael Jackson, and Marlon Brando have maintained their valuable images and likenesses after death, but the rank and file members of SAG are not going to generate big pay days for their heirs when they are gone.
Regardless of the merits of postmortem rights, there is no need to take rights away from the living to protect the heirs of the dead. Such truly eternal figures like Elvis have alternative avenues for their estates to protect rights in their names and likenesses, such as trademarks, without resorting to postmortem rights of publicity. Even if SAG-AFTRA is committed to extending the right of publicity beyond death, such laws can be drafted without risking everyone else's control over our own identities while we are alive. Efforts to stop the reanimation of actors can also be addressed by current laws, or by laws focused squarely on that issue, or even with collective bargaining efforts. But turning people into IP is a dangerous business, and not just in dystopian movies.
[This is the third post in a five-part series about issues raised in my book, The Right of Publicity: Privacy Reimagined for a Public World (Harvard University Press 2018).]
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