A Fast and Furious Legal Conundrum: Who Owns a Dead Actor’s Image?

In the U.S., Fast and Furious 7 earned a record $147 million during its opening weekend, and a touching farewell tribute to the franchise’s late star Paul Walker has fans scrambling for tissues. Undoubtedly, Walker’s untimely 2013 death was heartbreaking for his fans and loved ones, but it also required the film’s director James Wan to film Walker's remaining scenes using footage from earlier films, Walker’s two brothers as body doubles and CGI (computer generated imagery) to artificially recreate the actor. Which raises questions: Who owns a dead actors image?

Who actually owns the rights to the CGI of Paul Walker in this seventh installment of the Furious franchise? And if you owned a business with a recognizable person attached to the promotion of your brand, how would you feel about utilizing CGI if that person died?

Photo Source: istockphoto

Filmmakers have had to replace or artificially recreate actors who died during filming for years. In 1981, Natalie Wood died in a boating accident before finishing work on Brainstorm, Brandon Lee was accidentally shot in 1993 while filming The Crow, and Oliver Reed had a heart attack before filming ended on the 2000 film Gladiator.

Consequently, the odds are pretty good that the Furious franchise producers and their attorneys covered image and likeness rights in its contract with the actor. Either Walker’s estate agreed to allow Universal to use his likeness, or Walker’s contract could have addressed the use of a CGI or any other artificially created likeness of him in case of his death.

CGI Rights Can be Subject to Copyright and Right to Publicity

From a legal perspective, competing rights can come into play with creative works. There are copyrights owned by the author of a creative work that is fixed into a tangible medium (such as a CGI in a blockbuster movie). Those copyrights pertain to the visual image you see and any related software supporting it.

At the same time, there is an independent set of rights to publicity, or likeness, where in the Furious scenario, Walker (or his estate) likely own the likeness of him that is embodied in the CGI. Those rights to publicity also limit what the copyright owner can do with the CGI.

For example, I don’t have the right to create a digital image of Dustin Hoffman as Tootsie, and display it on billboards on the side of the road to promote my company, because I would be insinuating that Hoffman (or his character Tootsie) is somehow endorsing, affiliated with or sponsoring my products or services. Essentially, this could amount to a misappropriation of Hoffman's name and likeness, violate his rights to publicity, and potentially infringe trademarks.

The CGI of Paul Walker is interesting, because his death and the film potentially involve both the rights of copyright and rights to publicity. Since the actor himself didn’t create the CGI, he (or his estate) cannot be the author of the copyright, but they can maintain the rights to publicity.

Work Made for Hire Doctrine May Apply to CGIs

The work made for hire doctrine may also apply here. Generally, when W2 employees create a work in the scope of their employment the copyright automatically transfers from the person who created the work to the employer. Employers should be careful to clarify in writing that their employees will assign the copyright to any works they create to the employer. People mistakenly assume that the work made for hire doctrine applies to all creative works, but this isn’t always the case. It’s best to have good contracts in place and not just assume that you own all of the rights to the creative works. This is particularly true where a third party, such as an independent contractor, is hired. Otherwise, you may face the unfortunate surprise that you only own the license to use the work as opposed to owning the copyright.

For more information on this topic, please visit our Copyright Litigation service page.

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm.  The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution. 

Klemchuk LLP hosts Culture Counts, a blog devoted to the discussion of law firm culture and corporate core values with frequent topics about positive work environment, conscious capitalism, entrepreneurial management, positive workplace culture, workplace productivity, and corporate core values.