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"Actors who died 50 years ago will be starring next to contemporary actors."- Steve Williams, Industrial Light & Magic¹

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"If it be not now, yet it will come-the readiness is all." - Hamlet²

The public has already become accustomed to viewing films featuring actors, long dead, "acting" with now-living performers. Witness Carl Reiner's Dead Men Don't Wear Plaid,⁸ Woody Allen's Zelig,⁹ and Natalie Cole's "Unforgettable" Grammy-winning duet with her late father Nat "King" Cole.¹⁰ Coca Cola scored an advertising coup with its "dead celebrity" ad featuring Elton John performing to an appreciative audience that included Humphrey Bogart, James Cagney, and Louis Armstrong.¹¹ The overwhelming success of the ad led to a sequel starring Paula Abdul with Cary Grant, Groucho Marx, and a younger version of the still very vital Gene Kelly. As clever as these various "quick and the dead" films are, they rely on the performance of the deceased actor exactly as originally filmed.¹² These works depend either on carefully juxtaposing clips of the deceased performers with film of the now-living performer(s), as in Dead Men Don't Wear Plaid and "Unforgettable," or on extracting the deceased actor's image from existing film and stitching the image into the new film, as in the Coke ads, a process known as rotoscopy. Just as the "block book" served as a crude precursor of the printing press, today's technology serves as a forerunner to a technology that promises virtual resurrection. Reanimation technology promises to put fresh dialogue into the mouth of the deceased performer and to bring new physical activity to the actor; the images of the late actor will no longer be frozen in time. But this new technology also promises something else-new challenges to intellectual property and entertainment law.

How soon will this Lazarusian technology be upon us? In the immortal words of Rick Blaine, "Maybe not today, maybe not tomorrow, but soon . . . ."¹³ In fact, this embryonic technology has already been graphically, and rather dramatically, demonstrated. In May 1987, the pioneering film Rendez-vous à Montréal premiered at the Canadian Engineering Centennial Convention.¹⁴ The seven minute film starred Marilyn Monroe and Humphrey Bogart, in truth, a computer-generated synthetic Marilyn and Humphrey. To be sure, the images were not cinematographic replicas of the stars, but were an attempt to "portray these great stars emotionally-to reconstitute Marilyn's and Humphrey's personalities as most people know them."¹⁵ The film was dramatic evidence of on-going attempts to create realistic, computer-generated, synthetic actors. Today, researchers in computer graphics are addressing such problems as facial modeling,¹⁶ skin texture and hair modeling,¹⁷ emotion generation and synchronization with speech,¹⁸ motion synthesis,¹⁹ and voice synthesis.²⁰ While these research activities have been undertaken for a variety of reasons, not necessarily for the particular purpose of creating synthetic replicas of deceased actors, the results will be applied to reanimation. However, to achieve a quality of computer-generated synthetic image, voice, and emotional range that is indistinguishable from that of performances of the actor filmed during his lifetime is a goal perhaps not achievable in the near term. It may, in fact, be sometime early in the next century before the goal becomes a reality. But prognostication is a risky business, and I am reminded of the words of the late Professor J.C.R. Licklider of M.I.T.: "People tend to overestimate what can be done in one year and to underestimate what can be done in five or ten years."²¹

Whatever the difficulty in predicting exactly when this technology will reach maturity, its inevitability can be predicted with confidence. There is another prediction that can be made with equal confidence: The legal system will have to respond to concerns-some proprietary and others of propriety-created by reanimation. In the past, the legal system has reacted to, rather than anticipated, innovation; witness the introduction of the motion picture,²² television,²³ cable,²⁴ VCR,²⁵ and the pre-recorded videocassette.²⁶ Hamlet's observation about the certainty of death, "the readiness is all,"²⁷ is advice that might well be heeded with respect to reanimation. It is not too soon to begin a discussion of the legal issues raised by reanimation. While these issues may not be ripe for resolution, they are certainly ripe for reflection.

It is the purpose of this article to stimulate discussion of the legal issues involved in reanimation. The issues may be divided into those related to the creation of the synthetic replica of the deceased actor, and those related to its exploitation. With respect to creation, the focus will be on copyright. To create a realistic replica of the deceased actor, the reanimator will require reference works. Where these works enjoy copyright protection, issues arise as to whether, and to what extent, the reanimator may use these reference works without license. The discussion of copyright in Part II of this article will analyze the protectable versus unprotectable elements of reference works and consider whether interim copying is an infringement. It will also consider the efficacy of a fair use defense.

The issue of exploitation of the synthetic replica may be subdivided into proprietary and "moral rights" questions. The exploitation of the synthetic replica raises questions as to who, if anyone, should have a proprietary interest in the replica. Part III addresses the issue of whether the reanimator should be afforded copyright protection for the computer-generated replica, either as a computer program or possibly as an audio-visual work. Part IV address another aspect of the proprietary question, whether reanimation should be subject to the post-mortem right of publicity. Because the post-mortem right of publicity is still in its infancy, the question does not, as will be shown, admit of an easy answer. Part V addresses the proprietary concerns of trademark owners and licensees, with respect to unlicensed exploitation of synthetic celebrities.

Beyond the purely economic concerns raised by reanimation are concerns about the effect reanimation will have on the memory of the late actor. Presumably, the public as well as the actor's family will be concerned about potential abuse of persona made possible by reanimation technology. If the quality of the synthetic replica is poor, or if the reanimated actor is cast in roles inconsistent with or even antithetical to his image, the public memory or reputation of the actor may be damaged. Part VI of this article examines the effectiveness with which current laws deal with the "moral rights" problem and will suggest changes to existing law to more effectively deal with the issue.

To create the synthetic replica of a deceased actor, it will be necessary to reconstruct the actor's static characteristics such as height, weight, chest measurement, facial and hair features, and the actor's dynamic characteristics including mannerisms, gait, voice, and emotional range. One's physiognomy and other physical attributes are not copyrightable,³⁰ nor, for that matter, is one's voice.³¹ Were the actor alive, the reanimator would be "free to copy the original," in the oft-repeated pronunciamento of Justice Holmes in Bleistein v. Donaldson Lithographing Co.³² But the actor is not alive to be "copied" and therein lies the problem. Although one could speculate that reanimation technology will be developed that in no way would implicate existing works featuring the deceased actor, such as a still photo, motion picture, or sound recording, it seems improbable that a reanimator could recreate a Paul Muni or Bette Davis without reference to existing works.

As will be discussed, torso and limb dimensions can be digitally replicated without using pre-existing visual works for more than general observation. However, to create a three-dimensional digital model of a deceased actor's head and facial features with current video-imaging technology will require reference to existing still photos and/or motion picture frames. Re-creation of the actor's voice will require reference to sound recordings or sound tracks of motion pictures.³³ Synthesizing the actor's emotional range, including voice, will require reference to motion picture performance, not mere display. To the extent that the reanimator relies on photographs or motion pictures in the public domain,³⁴ or is either the owner of the copyright or a licensee authorized to make use of the work for reanimation purposes, copyright is not an issue. But where the reanimator chooses to rely on a presently copyrighted work to aid in the reconstruction of the deceased actor and does not, or is unable to, acquire a license from the copyright owner, the reanimator will have to demonstrate either that his reanimation in no way implicates any of the rights of a copyright owner or that his use is privileged under the "fair use" rubric. The best strategy of the reanimator would be to demonstrate that no right of the copyright owner has been invaded, thus avoiding a problematic fair use defense.

The owner of a copyright is granted the exclusive right of reproduction,³⁵ distribution,³⁶ public performance,³⁷ and display of the work,³⁸ as well as the right to create a derivative work incorporating in whole or in part the underlying copyrighted work.³⁹ If the reanimator does not exploit any of these rights in recreating the deceased actor, then no infringement can be successfully claimed. Each of these rights will be examined in the context of possible exploitation by the reanimator.

A number of current video-imaging techniques, all involving photographic reference material, may be used to recreate the physiognomy of the deceased actor. One technique, photogrammetry, compares common points in two photographs taken at different angles in order to calculate a three-dimensional coordinate of the point.⁴¹ Another technique involves sculpting a bust of the late actor in a physical medium such as clay by referencing various photographs of the actor. The three-dimensional bust is then gridded and a computer input device optically scans the physical model to create a three-dimensional digital model in the computer.⁴² The third method involves direct computer sculpting where the animator studies the photographs and "sculpts" the computer model using two computer input devices: a six-degree of freedom interactive input device for spatially orienting the digital "bust" and a two-degree of freedom input device to do the sculpting.⁴³ Each of these techniques will be analyzed in a copyright context.

Beginning with Burrow-Giles Lithographic Co. v. Sarony,⁴⁴ photographs of human subjects have been protected by copyright. Copying of a copyrighted photograph, whether by lithographic reproduction,⁴⁵ a similarly posed photograph,⁴⁶ a sketch,⁴⁷ or sculpture,⁴⁸ has been held to infringe the copyright. But copyright protection extends only to the copyrightable elements of the photograph. The human subject itself is not copyrightable.⁴⁹

So what, then, is it that is protectable? In Sarony's photograph of Oscar Wilde, it was "posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, [and] suggesting and evoking the desired expression."⁵⁰ In a photograph of a nude model,⁵¹ it was "the pose, light and shade."⁵² And Zapruder's historically significant film of President Kennedy's assassination was protectable because "Zapruder selected the kind of camera (movies not snapshot), the kind of film (color), the kind of lens (telephoto), the area in which the pictures were taken, the time they were to be taken, and (after testing several sites) the spot on which the camera would be operated."⁵³ As long as the animator does not appropriate any of the protectable elements of the photographs or motion picture frames, or if, at least, there is no substantial similarity with respect to protected elements of the reference works, there is no infringement.

As long as the reanimator uses photogrammetric techniques, he is not attempting to replicate the costuming, pose, lighting, shade, or other protectable elements; rather he is acting much as an anthropologist with a set of calipers, measuring the dimensions of the subject. By comparing identical points on the surface of the actor's face as portrayed in two photographs taken at different angles, the reanimator is able, with the aid of the computer, to establish a three-dimensional coordinate of the point. He can also establish three-dimensional coordinates of the other points which make up the surface of the subject's face and head. If nothing more than these reference points are used, then it would be stretching to suggest that a protectable element of the photographs had been appropriated since the pose as such was not copied nor would costume, light, shade, or other elements be appropriated. The most that could be said is that the respective angles of the reference photos were used in the calculation of the three-dimensional coordinates of a particular point on the surface of the actor's face.

If, however, the photographs as a whole are input through an optical scanning device to facilitate the three-dimensional modeling, then the issue of copying arises. In its Final Report, the National Commission on New Technological Uses of Copyrighted Works stated, "The 1976 Act, without change, makes it clear that the placement of any copyrighted work into a computer is the preparation of a copy."⁵⁴ The enactment of the "Computer Software Act of 1980",⁵⁵ according to Professor Nimmer, made it "clear that computer input constitutes the making of a 'copy.'"⁵⁶

The courts in three cases have held that inputting data into a computer is copying.⁵⁷ It might be argued, however, that not every input of data is necessarily a copy.⁵⁸ In Rand McNally & Co. v. Fleet Management Systems, West Publishing v. Mead Data Central, and Bellsouth Advertising and Publishing Corp. v. Donelley Information Publishing, the data that was input was retained in memory on a long term and not merely transient basis; the data could be "perceived, reproduced or otherwise communicated"⁵⁹ by the defendant's computer software/hardware; and finally, the data output was substantially similar to the data input.⁶⁰ Before concluding that the input of data to a computer is the preparation of a copy, three questions need to be addressed. Was the data in computer memory "fixed"?⁶¹ Was the output substantially similar to the input?⁶² Finally, was the data, once input, perceivable with the aid of a machine or device?⁶³ The input of the entire picture necessarily implicates an appropriation of the copyrighted elements of the photographs as well as the unprotected elements. But, it does not follow that such an appropriation is a copying.

First, to constitute a copy, the copy must be "fixed." To be "fixed" the copy must be "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated, for a period of more than transitory duration."⁶⁴ As Nimmer suggests,

In Mura v. Columbia Broadcasting System,⁶⁶ the court held that in the live broadcast of the Captain Kangaroo program, "The evanescent reproduction of a hand puppet on a television screen or on the projected kinescope recording of it is so different in nature from the copyrighted hand puppet that. . . it is not a copy."⁶⁷ In reaching its conclusion the court observed, "After 1/15,000 of a second plus the time for the phosphor decay, which is measured in milliseconds, the image disappears and nothing is left."⁶⁸ If the input of the photographs is but for a transient period, then the photographs would not be fixed and hence no copy of the protectable elements could be said to have been made although admittedly the non-infringing three-dimensional points would be fixed. However, if the computer analysis requires that the photographs be stored in memory for more than a transient period, then there is a fixation of the photographs, albeit in digital format, and the digital images stored in the computer are not merely substantially similar to, but identical to, the copyrighted photographs. Presumably, however, once the computer completes its three-dimensional analysis, the digital copies of the photographs will be erased from memory and all that will remain is the three-dimensional model of the actor's face and head. Does the fact that the ultimate permanent fixation does not contain protectable elements of the reference photographs and is not, therefore, itself an infringement of the reference photographs immunize the interim fixation of those very photographs? In Walker v. University Books, Inc.,⁶⁹ the court rejected an interim use defense: "[T]he fact that an allegedly infringing copy of a protected work may itself be only an inchoate representation of some final product to be marketed commercially does not in itself negate the possibility of infringement."⁷⁰ Similarly, in Walt Disney Productions v. Filmation Associates,⁷¹ and Sega Enterprises Ltd. v. Accolade, Inc.,⁷² the courts rejected a "transitory step" argument of the defendants. However, other case law suggests that as long as the final product is not substantially similar to the reference work, interim copying is irrelevant.

In Walker v. Time-Life Films,⁷³ the district court refused to consider the plaintiff's request to compare earlier scripts of defendant's screenplay to plaintiff's book to establish substantial similarity. The court stated that it would "consider[ ] the works as they were presented to the public."⁷⁴ On appeal, the Second Circuit stated: "[S}ince we conclude as a matter of law that, even assuming borrowing or copying, no substantial similarity exists between the protectable portions of the final versions of the works, any error in exclusion of the early drafts was harmless."⁷⁵ And in a Ninth Circuit case, See v. Durang,⁷⁶ the court stated: "The only discovery plaintiff suggests is the production of early drafts of defendant's play on the theory they might reflect copying from plaintiff's play that was disguised or deleted in later drafts. Copying deleted or so disguised as to be unrecognizable is not copying."⁷⁷ The decisions in Time-Life Films and See might be interpreted as standing for the proposition that interim copying is not actionable if the final product is not itself substantially similar to the reference work.⁷⁸

Assuming that the final product of the reanimator is not substantially similar to the reference work, with respect to the protectable elements, the question of whether the interim, computer-stored copy of a reference photograph is an infringement will depend on whether courts adopt the reasoning of Sega or the reasoning of Time-Life Films. It is likely that long before reanimation of deceased actors becomes a reality, courts will have addressed the "interim copy" issue with respect to the computer manipulation of still photos to create photographic "output" that to the lay observer is not substantially similar to the "input."⁷⁹ Presumably, the courts' analysis of whether a photographic output that is not substantially similar in the eyes of the average observer to the input is nonetheless an infringement will provide guidance to reanimators.

However, one aspect of the interim fixation issue may distinguish the reanimation issue from the mere computer manipulation of still photographs. Presumably, the reason still photos are being digitally manipulated is that the "manipulator" desires that the photographic output of the manipulation contain some elements of the original photograph; otherwise, why use it in the first instance? But in the construction of a three-dimensional model of an actor, there is no desire to incorporate the reference photographs in the final product, only a need to acquire dimensional data.

Once the dimensional calculations are made, the digitally stored reference photograph can be wiped from memory. The mere fact that a copy is destroyed does not of itself expurgate an infringement.⁸⁰ But, to be a copy there must be a fixation from which the work can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device.⁸¹

Eventually, the reanimator will be able to develop a computer program that will accept a digital input from an optical scan of the reference photographs and automatically calculate the three-dimensional points from a comparison of the digital data, without the need for any interaction with the reanimator, and therefore without the need to visually display the reference photos. If the software is structured such that any output of the digitally-stored photographs is a proscribed command, and if the digitally stored photographs are automatically wiped from memory after the three-dimensional calculations are made, an argument might be made that the fixation is not, in a definitional sense, a "copy" because the fixation will not be perceivable when the software prohibits such a possibility,

In addition to digitally recreating the actor's physiognomy, it is also necessary to replicate in digital form the actor's torso and limbs. This can be done by making a body cast of a person whose dimensions are similar to that of the late actor, gridding the plaster casting, optically scanning the gridded casting and feeding the digitalized data into the computer⁸² . Another method is to place a grid on the person's body directly, as was done in Terminator 2, and then to scan the person. Finally, taking a page from Frankenstein, digitally stored body parts can be borrowed from other synthetic actors and reshaped appropriately (this approach was used in creating a synthetic Elvis in which Marilyn's legs and arms and Bogie's hands and ears were used).⁸³ Although some reference to existing photographs or motion picture frames will be necessary, it does not appear that serious copyright issues arise.

As previously stated, the physiognomy and other physical attributes of an actor are not protected by copyright. If the reanimator's task was limited to the reproduction of a computer-stored, digital "sculpture" of the late actor, his reference to existing works would be only to obtain the physical dimensions of the actor such as height, length of forearm, size and shape of ears, and spacing and shape of eyes. The extraction of such non-copyrightable elements from copyrighted works may not constitute an infringement of the reproduction right, as discussed above. However, the reanimator seeks to do more than merely pose the actor like one of the whitened, human statues in the Wallace Circus in Bleistein. The reanimator seeks to resurrect the actor to act.

Activities such as walking, running, grasping, and hitting can be synthesized today by employing techniques which require a human "stand-in" to perform the necessary activities. One technique utilizes a grid which is painted on the person and a digital-video camera to record the data for use in the computer-animation process. Another technique involves the use of a body suit with built-in sensors that detect the relative position of various body components such as spine, hand, and arm. The sensed data is then input into the computer. Eventually researchers will develop the ability to create realistic synthetic actors capable of motion without the use of a human stand-in. None of these activities particularly implicate copyright. Where copyright becomes a potential issue is in the "customizing" of the computer-stored image to reflect the idiosyncrasies of a particular deceased actor. To discern the peculiar gait of an actor, such as the "rolling" walk of a John Wayne, or particular mannerisms, such as the hand gesture of a Jack Benny, would require study of film of the actor. If the reanimator simply studies the film in order to "fine-tune" the computer model to more accurately reflect the peculiar dynamics of the deceased actor, it would require extraordinary lego-semantic gymnastics to suggest that something protectable in the motion picture was appropriated. An idiosyncrasy in and of itself is not copyrightable. Were the actor alive, he certainly could not be deprived of walking in a particular way or gesturing in a certain manner simply because he had once done so in a motion picture still protected by copyright. His idiosyncrasies are part of the tools of his trade, to be employed more than once, not unlike the author who reuses a main character in subsequent novels.⁸⁷ Thus, if all that is appropriated from a study of the reference motion pictures are the dynamics of an actor's idiosyncrasies, there is no infringement.

In Western drama, the most significant "acting" involves facial animation and verbalization. While emotional state may be signaled by gesture or body language, the face is the truest mirror of emotion. Also, facial expression and head movement may serve as a substitute for words: the nod of the head, the quizzical arch of eyebrow, the sneer of contempt. The muscles that animate the face are common to all humans: the occipito frontalis that raises the eyebrow, the zygomaticus major that raises the corner of the mouth, and the orbicularis that purses the mouth. These muscles are employed in reflecting emotions common to all humankind such as anger, disgust, fear, happiness, sadness, and surprise.⁸⁸ Research into emotion synthesis and the problems of lip-phoneme⁸⁹ synchronization, as well as other aspects of facial expression, is underway in a number of institutions.⁹⁰ Eventually, synthetic actors will be created that will be capable of realistic generic facial expression and emotional response. Because the muscles that animate the face are common to all humans and because emotions such as anger and surprise are common to all humankind, a generic model provides a general solution to facial animation. Paradoxically, however, an individual's uniqueness is particularly evident in that person's face. Thus the reanimator will need to create a synthetic actor capable not merely of generic emotional response but rather one that reflects a particular deceased actor's facial expression and emotional response. To capture the anger of a Lee J. Cobb, the haughty sneer of a Charles Laughton, the derring-do smile of an Errol Flynn, or the sultry look of a Marlene Dietrich requires more than a generic solution.

Emotion has been defined as "the evolution of the human face over time: it is a sequence of expressions with various durations and intensities."⁹¹ Still photos will yield information on a particular expression, such as surprise or fear. But individual still photos do not reflect the fourth dimension, time. Motion pictures capture time by the linear distance a particular frame is from the initial frame. So, it is to motion pictures that the reanimator must refer to capture emotion and other facial animation. If-and this may be a big "if"-the reanimator is able to modify generic emotional synthesis and other aspects of facial animation to reflect the nuances of a particular reanimated actor by simply studying a performance of the film,⁹² then the reproduction of these facial movements in the dynamic modeling does not copy the reference film, unless an actor's filmed facial movements are copyrightable elements per se, even though these dynamic characteristics are fixed in computer memory and even though they are capable of being perceived, reproduced, or otherwise communicated.

It is possible that future algorithms will be developed whereby a film can be optically scanned to "recognize" emotional and other facial animation which can be input to the computer to create the dynamic model of the late actor.⁹³ This approach raises potential copyright issues. The ability to portray emotions is part of an actor's stock in trade. Clearly, the actor who displays anger in one film cannot be precluded by copyright law from displaying that same anger in another film -copyright law is not so all encompassing.⁹⁴ That said, the expression in the film is comprised, in part, of the emotional responses of the actors. Thus, the issue becomes whether an actor's emotional response in a particular film is separable from the expression of the film or whether it is inextricably linked with that expression. The question seems almost metaphysical. But, if this Gordian copyright knot can be cut by technology and means can be developed whereby the physical manifestations of emotion, the movement of an eyebrow or the motion of the lips and eyes, can be extracted from the film as it is optically scanned without appropriating, at the same time, the expression of the film, then no infringement will have occurred. However, it should be noted that if the emotion synthesis techniques should require computer input of a sequence of motion picture frames in order to create the dynamic model of the actor, copyright clearly would be an issue. The copyright analysis of the digital input to synthesize the static characteristics of the actor is equally applicable to the digital input to synthesize facial animation.

Digital sampling has been a topic well ventilated, not only in scholarly works,¹⁰³ but in the press as well.¹⁰⁴ The sounds in a sound recording are protected against unlicensed reproduction by the Copyright Act. There is no question that at some level of copying, the appropriation would be held to be substantially similar to the original. The question that remains to be answered is what quantum falls just short of being substantial. In the only case to be fully litigated, Grand Upright Music Ltd. v. Warner Brothers Records.¹⁰⁵ (the "BIZ MARKIE" case), the court enjoined the appropriation of three words-"Alone again (naturally)"-and the accompanying notes. Were three words and the music accompanying the words to be the threshold of substantial similarity, the test for substantial similarity with respect to sound recordings would not be significantly more stringent than the test for infringement with respect to other types of works. But, there are those who believe that using even one isolated sound may be an infringement of the sound recording reproduction right.¹⁰⁶ In theory there should be no distinction between the quantum of sound that would be an infringement if appropriated from a motion picture sound track and one appropriated from a sound recording, although, the focus of digital sampling claims has been on music sound recordings. And in theory, it should not matter that the sound, rather than being a musical one, such as a trumpet note, a drum beat, or a high C by Pavarotti,¹⁰⁷ is one phoneme in a series of phonemes comprising a word spoken by an actor. If the above logic is adopted, not only could one not take Rhett's "Frankly, my dear" from the soundtrack of Gone With The Wind,¹⁰⁸ but one could not take "Frankly" or even the first phoneme "f" of "Frankly". If this is to be the interpretation of sound protection, then one potential method of voice synthesis would probably die aborning. Although it may well not be an effective method of voice synthesis, one procedure might be to build a catalogue of phonemes for a particular actor using existing sound recordings and soundtracks. This system may be impractical because phonemes depend in part on the character of the phoneme preceding and following a given phoneme. But if such a system were to be pursued, digital sampling law may prove a barrier to unlicensed phoneme reproduction. Putting aside the phoneme copying issue, does the single-sound theory create a problem where there is no direct copying but merely imitation or simulation? Of course, with respect to a sound recording, imitation or simulation of the sounds is not an infringement; as previously discussed, the only infringement that could conceivably occur in relation to a sound recording would be with respect to the underlying musical or literary work that is fixed in the phonorecord simultaneously with the sound recording and which the sound recording makes audible. However, imitation or simulation can be an infringement of the sound track of a motion picture. Assuming, for the moment, that a phoneme which is duplicated from a sound recording or a sound track is an infringement of the reproduction right, should it follow that the imitation or simulation of a phoneme or even a word from a film soundtrack should also be an infringement? I believe the answer is no.

The rationale for protecting an isolated sound against reproduction is that it is unique to the artist and perhaps even unique to one particular performance of the artist, be it a trumpet note of a Miles Davis or the high C of a Pavarotti. To the extent the trumpet note or high C can be imitated or synthetically created, as opposed to reproduced, it is not unique. Protection against imitation, and even synthesis, is better left to the right of publicity, if it is to be protected at all. The sound recording provision was aimed principally at outright piracy; it filled a gap in the law where, theretofore, relying solely on a compulsory mechanical license for the song, pirates were free to reproduce the sounds contained in a music phonorecord. It is arguably a distortion of the intent of the copyright law, which requires some de minimis threshold of originality, and of the rationale for the enactment of the sound recording provision itself to say that copyright law should hold that the appropriation of a single sound is an infringement.¹⁰⁹ But to go further and to hold that copyright law should prohibit the imitation or electronic synthesis of a sound, where that sound is connected with, and makes audible, but a part of one word, would be to render meaningless the concept of originality. It would elevate the importance of the sense of hearing to a state far more grandiose than the sense of sight: no single word, not even a short common phrase is copyrightable simply because it is in printed form. Even if courts protect single sounds against duplication, they will not, or at least should not, protect single sounds against imitation or synthesis.

The above discussion has focused on the performance of a motion picture or sound recording during the reanimation process itself. Once the computer model of the deceased actor has been constructed, the actor will be utilized in one or more motion pictures that are intended for public performance. The mere fact the "same" actor appears in a post-mortem film as appeared in a film produced with that actor when alive would not in and of itself lead to a conclusion of substantial similarity. First of all, the actor is not a copyrightable element. To hold that he were would lead to the obviously absurd conclusion that once an actor appeared in one film, the actor could appear in no subsequent film without license from the copyright owner of the first film.¹²¹ The test of substantial similarity would have to be based on criteria other than the identity of the actor.

The fair use analysis is germane to two stages of reanimation. The first stage involves the research and development that precedes commercial exploitation; the second stage is the actual commercial exploitation of reanimation.

Two of the fair use factors will remain unchanged as reanimation moves from the research stage to commercial exploitation. With respect to "the nature of the copyrighted work,"¹²⁸ the reference works - photographs, motion pictures, and sound recordings - are themselves likely created for commercial exploitation and typically not for non-profit purposes. With respect to "the amount and substantiality of the portion used in relation to the copyrighted work as a whole,"¹²⁹ the amount appropriated may vary from an entire work, such as a single still photograph, to relatively small segments, such as several frames from a two-hour film; but the amount appropriated with respect to any given reference work is not likely to vary substantially between the R & D stage and full commercial exploitation. It is in "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes"¹³⁰ and "the effect of the use upon the potential market for or value of the copyrighted work"¹³¹ that a sharp distinction can be drawn between the R & D stage and the commercial exploitation stage.

During the R & D stage, the reanimator will take the position that the use of the copyrighted reference work is for "research," and at least as conducted in universities, non-profit. The position taken by the reanimator will be reminiscent of the arguments put forth during the 1960s with respect to experiments in the computer storage and retrieval of large scale databases.¹³² The reanimator will also argue that at the R & D stage, reanimation would have no immediate or near-term effect upon the market for the copyrighted reference works. During the R & D stage of reanimation, I believe that researchers, or at least university researchers, will be able to rely on factors 1 and 4 of fair use to establish that the interim copying is not an infringement.

There is no question that reanimation will be exploited commercially, either by the reanimator producing his own films or by leasing the synthetic actor to other film producers (not unlike the loan-outs during the halcyon days of the Hollywood studio system). At the stage of commercial exploitation, the reanimator can no longer claim non-profit purposes under factor 1, and in fact, is faced with the pronouncement of the U.S. Supreme Court that "every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright."¹³³ However, as observed by the Ninth Circuit in Sega v. Accolade,¹³⁴ "the presumption of unfairness that arises in such cases can be rebutted by the characteristics of a particular commercial use."¹³⁵ In Sega, the Ninth Circuit noted that in that case "the use at issue was an intermediate one only and thus any commercial 'exploitation' was indirect or derivative."¹³⁶ The same could be said of the reanimator's interim copying; it was done to extract unprotected data only, arguably an indirect use.

In Sega, the court also emphasized that Accolade had no other alternatives available.¹³⁷ With respect to reference films, the same may be true for the reanimator. For the late actor who made but few films, (e.g., James Dean), or for an entity that owns the copyright to a large catalog of films, (e.g., Ted Turner, who owns the MGM library), the ability to preclude the use of such indispensable reference films would confer an unwarranted monopoly. This monopoly would allow the copyright holder to control not only traditional exploitation of the films, as provided in Title 17, but to control reanimation - which is contemplated by neither Congress nor, more importantly, the Constitution. Furthermore, the copyright owner might choose not to reanimate the actor on the theory that he can gain more revenue from the few films made by the late actor, films which may well be "cult classics," as long as no reanimation takes place, than he might gain from the combined revenue of the reanimation films and the old, but now no longer exclusive, films. Thus, as to reference films, and perhaps even as to photographs and sound recordings, the unavailability of a license should be a factor. Finally, in Sega, the Ninth Circuit emphasized public benefit considerations:

Factor 2, as applied to the reference works as a whole, is not likely to favor the reanimator, since unlike for the computer program in Sega,¹³⁹ there is little difficulty in finding a distinction between the idea and the expression in the typical reference photograph, film or sound recording. Thus, it is unlikely that factor 2 will be of any assistance to the reanimator's claim of fair use. But there remains to be considered factor 3, "the amount and substantiality of the portion used in relation to the copyrighted work as a whole,"¹⁴⁰ and factor 4, "the effect of the use upon the potential market for or value of the copyrighted work."¹⁴¹ The analysis of "the amount and substantiality of the portion used in relation to the copyrighted work as a whole" has primarily focused on the quantity of the portion of the work appropriated and/or the quality of the portion of the work appropriated.¹⁴² If the reanimator can establish that he did not input the entire reference work, a position perhaps more readily taken with a motion picture than a photograph, he could conceivably demonstrate that he has not appropriated so much by way of quantity or quality that factor 3 should be weighed against him rather than in his favor.¹⁴³ However that may be, I believe there should be a third measure of the appropriation - a temporal measure.

In Knickerbocker Toy Co. v. Azrak-Hamway Intern.,¹⁴⁴ defendant employed a "blister card,"¹⁴⁵ using an illustration of the plaintiff's toy car "Wrist Racer," as a sample to position its art work. The use of the blister card was limited: "a totally different illustration would be used for the production run of the card."¹⁴⁶ The court concurred with the finding of the trial judge that "[the blister card] was only an office copy which was never used."¹⁴⁷ The court held that this interim use fell "squarely within the maxim of de minimis non curat lex."¹⁴⁸ In Knickerbocker, there was a fixation in a material object, and there was an interim use, but the interim copy was not used in the final product, not unlike the procedure followed by the reanimator. It may be that less use was made of the photograph of the toy car in positioning the art work in Knickerbocker than might be made of a reference work in the creation of a three-dimensional computer model of a deceased actor. But, if Knickerbocker suggests that "[a] commercial use may be of such limited duration . . . as to justify holding for the defendant under the principle of de minimis non curat lex,"¹⁴⁹ perhaps that notion can be extrapolated to "times" that just exceed de minimis.

Let me suggest a time continuum that is marked at one end by that use which just exceeds being transient and that is marked at the other end by a copy that is permanent. The Knickerbocker case suggests that where the duration of use is so short and the ultimate product does not contain protectable elements of the work "copied," it is not even an issue of fair use; it is an issue with which the court does not even want to concern itself. I would suggest there is some duration of fixation which exceeds de minimis that would be a "fair use" as measured by time, so long as the copied elements did not appear in the final product. In developing reanimation technology, researchers who find it necessary to make an interim copy would be well-advised to keep the storage in computer memory to the absolute minimum necessary to accomplish data extraction from the reference works (and of course, to limit the quantity or quality copied, if feasible). Finally, as the Ninth Circuit observed in Sega, "The fact that an entire work was copied does not, however, preclude a finding a [sic] fair use . . . In fact, where the ultimate (as opposed to direct) use is as limited as it was here, the factor is of very little weight."¹⁵⁰ In reanimation, the ultimate use of the reference work is not merely limited, it is free of any protectable elements of the reference works. If the temporal measure of copying is adopted the use might pass muster under factor 3 or, if not, the factor may be given little weight for the reason suggested in Sega.

Finally, one must consider whether factor 4 favors the copyright owner or the reanimator. Is there a potential for economic harm to the owner of the reference works? With respect to photographs, the fact that a synthetic Charles Laughton appears in a film would not appear to diminish the market for photographs of the genuine article, i.e., Charles Laughton himself. Nor is it likely that the market for sound recordings made by the late actor¹⁵¹ will in any way be diminished by the fact the synthetic Charles Laughton speaks in a post-mortem film. If there is to be any significant adverse effect to reference works, one would think it would be the competition between films starring the synthetic actor and films starring the flesh-and-blood actor during his lifetime. But, if the synthetic actor is in no way substantially similar to the protectable elements of the reference motion picture, then, even if "he" were to contain protectable elements from other films or from photographs or sound recordings, that would be irrelevant to the litigation at hand. To say otherwise would be to conclude that there is a "collective" copyright for works that are not in a "collective work."¹⁵² Therefore, the issue is: does the exploitation of a work that does not contain protectable elements of a reference work but which was created by use of the reference work create a factor 4 problem?

With respect to factor 4 of fair use, Nimmer has opined:

While perhaps a close call, factor 1 might be found to favor the reanimator. Factor 2 will not favor the reanimator. Depending in part upon the quantity or quality of the portion of the reference work copied and in part on whether a court would agree to entertain a "temporal" criteria in evaluating factor 3, this factor might be found to favor the user. Factor 4 is clearly in the user's favor. The user might also point out that his use is "productive,"¹⁵⁵ rather than "non-productive,"¹⁵⁶ as the "distinction between 'productive' and 'non-productive' uses may be helpful in calibrating the balance"¹⁵⁷ between the interests of the owner and the user. Thus, one might draw the conclusion that even if interim copying would otherwise be an infringement, the reanimator may well be successful in raising a fair use defense.

While the reanimator may be successful in establishing a fair use, he will obviously be better off if he is able to avoid interim copying or, if copying is unavoidable, to limit the duration of the fixation to a time period that a court might find de minimis, as in Knickerbocker.

A review of human modeling, animation and rendering literature¹⁶³ reveals that a variety of techniques are being evaluated with respect to the creation and animation of synthetic human actors. The creators of "Rendez-vous à Montréal" have proposed classifying animation techniques according to a hierarchy of motion control methods ("MCMs"): (1) geometric, (2) physical and (3) behavioral.¹⁶⁴ Geometric techniques were the earliest approach to animation control using successive joint angles to define motion. More sophisticated is the dynamic approach relying on such parameters as mass, moment of inertia and stiffness. The intent of behavioral motion control is to take into account the fact that "[m]echanics-based motions are too regular, because they do not take into account the personality of the [actor]."¹⁶⁵ Of particular importance in creating a realistic replica of a deceased actor is facial modeling; various facial animation methods are currently under study, including parametized models, muscle models for facial expressions, and abstract muscle action procedures.¹⁶⁶ Also under study are such matters as "object grasping," hair rendering and clothing modeling.¹⁶⁷ What is unclear at this juncture is whether one particular approach will ultimately be adopted as the optimum technique for creating a realistic, synthetic human, or whether alternative techniques will compete on more or less equal terms. Presumably, alternate technical approaches to the creation and animation of synthetic actors would lead to somewhat different software structures. One might expect that, with respect to any one particular technical solution to animation, competing software implementing that approach would have certain characteristics in common and that other technical approaches would result in competing software with other general characteristics.¹⁶⁸ To some degree, one might anticipate that, because the end goal is the creation of a realistic replica of a human, the software structures will have some common characteristics at higher levels of abstraction,¹⁶⁹ regardless of the particular technical approach taken to achieve the goal. The above generalizations must then be examined in light of existing judicial approaches to the issue of scope of protection.

It is axiomatic that copyright does not protect an idea but only the expression of that idea. The axiom is easy to state. It is the application of the axiom that is problematic, particularly to computer software.

At the highest level of abstraction, one might state that the idea, or purpose, of reanimation software is to produce a realistic, dynamic, audio-visual model of a particular actor. In Whelan Associates v. Jaslow Dental Laboratory¹⁷⁰ the Third Circuit concluded:

At the other extreme is the approach the Second Circuit took in Computer Associates International v. Altai, Inc.¹⁷⁵ In Computer Associates, the court engaged in a three-step process: abstraction, filtration, and comparison. In Computer Associates, the court analyzed the software at various levels of abstraction beginning with the object code and ending with an articulation of the program's ultimate function. Once the various levels of abstraction have been determined, the protectable expression is "filtered" from the unprotected. The unprotected portion at a particular level of expression might be deemed so because it is the idea, or is dictated by considerations of efficiency so as to be necessarily incidental to that idea, required by factors external to the program itself (analogized to "scènes à faire") or is in the public domain.¹⁷⁶ Since efficiency would be the goal of any programmer, to treat efficiency as equivalent to an idea under the merger doctrine is clearly a disincentive to a creative programmer though a boon to a competitor (and perhaps, the most dramatic evidence that the Second Circuit approach is too restrictive). Also included as an external factor are the demands of the industry being served. It is likely that reanimated actors will be "directed" from some type of console. Since it is unlikely that the console will be customized to a particular reanimation supplier, the supplier will have to ensure compatibility of his software, including command menus, with the console. In addition, there must also be compatibility with the film producer's software for integrating the reanimated actor into a digitized version of the live action filming. To the extent a reanimator's software is structured to meet these compatibility demands, the software is not protectable expression, at least not in the Second Circuit. One consideration labeled under "External Factors," "widely accepted programming practices within the computer industry,"¹⁷⁷ seems somewhat redundant to the last factor, "elements taken from the public domain,"¹⁷⁸ which includes programming that "if not standard . . .[is] then commonplace in the industry."¹⁷⁹ Following this rigorous - if not draconian - filtration, the court engaged in a comparison of the defendant's work to the protected "golden nugget" components of the plaintiff's work. As Whelan has been criticized for being overly protective of the first-comer, Computer Associates has been criticized as not providing adequate protection to a creator.¹⁸⁰

The Ninth Circuit, home of the extrinsic/intrinsic approach first enunciated in Sid & Marty Krofft Television Productions v. McDonalds Corp.,¹⁸¹ has reformulated the extrinsic test "to perpetuate 'analytic dissection' as a tool for comparing not only ideas but also expression."¹⁸² The Ninth Circuit also now apparently applies analytic dissection at the intrinsic stage: "Analytic dissection is relevant not only to the copying element of a copyright infringement claim, but also to the claim's ownership element . . . . Thus, where two works are found to be similar without regard to the scope of the copyright in the plaintiff's work . . . the source of the similarity must be identified and a determination made as to whether this source is covered by plaintiff's copyright."¹⁸³ While the Second Circuit first filters protected from unprotected and then compares similarities, it appears that the Ninth Circuit would first compare and then filter.¹⁸⁴ Whether the Second Circuit or Ninth Circuit approach is less protective of the plaintiff is not clear.¹⁸⁵ Perhaps one can take the Third and Second Circuits as representing the polar positions with the other circuits falling somewhere along the continuum of scope of protection. While the First Circuit has not provided guidance as specific as that of the Second, Third, and Ninth Circuits, the district court opinion in Lotus Development Corp. v. Borland International¹⁸⁶ is an insightful decision, in its discussion of the idea/expression dichotomy in the context of deciding where in the hierarchy of the program structure the infrastructure ceases to be idea and becomes expression.¹⁸⁷ While the Borland court concluded that the rulings made were substantively compatible with, though different in methodology from, the Second Circuit decision in Computer Associates, the analytical approach taken in Borland is somewhere on the aforementioned continuum; less protective than the Third Circuit in Whelan but somewhat more protective than the Second Circuit in Computer Associates.

Hopefully, the circuits will reach some uniformity or the Supreme Court or Congress will impose guidelines to insure homogeneity among the circuits before those who create synthetic actors reach the stage of commercial exploitation. While it may be some time before the circuits do come to some common understanding of how to determine scope of protection, there are aspects of reanimation programming that will clearly warrant protection, and strong protection at that. While much of the software will be devoted to paradigmatic solutions to such problems as walking, speaking, smiling or grasping, some activities of the reanimator will be very subjective, varying to the same degree as where two portrait artists might interpret the same human model differently. No two animators in modifying the parameters that are implicated in a smile, or a frown, are likely to do so in an identical manner. Because realism is, to a degree, in the eye of the beholder, two animators each independently creating a synthetic Marilyn Monroe are likely to have somewhat different perceptions of what a "realistic" replica is.¹⁸⁸ It is this subjectivity that is likely to be given broad protection, whether one espouses the position currently held by the Third Circuit or the Second Circuit.

As discussed in "Trade Secret Protection," below, commercial exploitation, at least initially, will be limited to licensing use in film productions. Thus, the audio-visual output of the reanimation will be available to potential reanimation competition only to the extent the reanimated actor appears in a film. Assuming such films are generally available on pre-recorded videocassettes, a competitor might analyze segments of the film in which the reanimated actor appears in order to acquire such personalized parameters as lip displacement of the synthetic actor during a smile. While I have suggested in Part II of this article that the features and emotional range of the late actor himself are facts, and therefore, not subject to copyright protection, I would also suggest that the characteristics of the reanimated actor are not themselves facts but rather the subjective decision of the reanimator as to what is "realistic," in short, not facts but expression, much as the work of a sculptor or painter is expression. If my conclusion is correct, then any copying of the features, emotions, etc., of the synthetic actor by a competitor would be a copyright infringement unless protected by a fair use defense.

If a court, regardless of the analytical scheme it employs, finds a competitor's unlicensed use of a reanimator's software and/or audio-visual output to be a substantially similar copy, the competitor will be liable for copyright infringement unless shielded by a fair use defense. In Part II of this article, I discussed the fair use defense as it related to a reanimator's unlicensed use of copyrighted reference works containing the image and/or voice of the late actor. In concluding that the reanimator might be successful in raising a fair use defense, I suggested that factor 1¹⁸⁹ of the fair use defense might be found to favor the reanimator as might factor 3.¹⁹⁰ I also suggested that factor 4¹⁹¹ would clearly favor the reanimator. While in Part II I concluded that the reanimator might be successful in raising a fair use defense, I do not believe that the competitor who utilizes the reanimator's work will have success with a fair use defense, because factors 1 and 4, which might have favored the reanimator, as discussed above, will not favor the reanimator's competitor.

The competitor's use of the reanimator's work clearly will be for commercial purposes and "every commercial use of copyrighted material is presumptively an unfair exploitation. . . ."¹⁹² While that presumption might be rebutted by evidence that the "commercial 'exploitation' was indirect or derivative,"¹⁹³ as I argued might be true of the reanimator's copying, the copying by the reanimator's competitor might be said to be direct. Thus, factor 1 would likely be found not to favor the competitor. And even if factor 3 might prove to be no more or less favorable to the competitor than to the reanimator, factor 4, which I argued clearly favored the reanimator, would not, I would argue with equal force, favor the competitor who copies the reanimator. What distinguishes the application of factor 4 is that the reanimator will not compete as directly with the creators of reference works as would the copyist who would compete head-to-head with the reanimator using the reanimator's own material. Finally, whereas the original reanimator use might be considered a "productive" one,¹⁹⁴ the competitor's exploitation of the reanimator's work would be "non-productive."¹⁹⁵ Thus, I conclude that the competition will not be persuasive in arguing a fair use defense.

Eventually, commercial reanimation exploitation may be expanded from the mere licensing to a relative handful of motion picture producers to the sale of reanimation software to the mass market, much as videocassettes and game cartridges are sold today. "Arm-chair" producers, equipped with cam-corder, personal computer and reanimation software, will be able to create their own films in which they co-star with Humphrey or Marilyn. When reanimation software is available at the retail level, it is likely trade secret protection will be of slim comfort, leaving only copyright, and possibly post-mortem right of publicity, as a means of protecting reanimation software.

While most of the states have some type of privacy/publicity laws, statutory or common law, only a relative few states, so far, have specifically addressed the post-mortem right of publicity. Nine states have passed post-mortem right of publicity statutes: California,²⁰⁵ Florida,²⁰⁶ Kentucky,²⁰⁷ Nebraska,²⁰⁸ Nevada,²⁰⁹Oklahoma,²¹⁰ Tennessee,²¹¹ Texas²¹² and Virginia.²¹³ The law of four states has been expressly interpreted, either in state or federal court, to include a common law post-mortem right of publicity: Arizona (if exploited during lifetime),²¹⁴ Georgia (whether exploited during lifetime or not),²¹⁵ New Jersey (if exploited during lifetime),²¹⁶ and Utah (if exploited during lifetime).²¹⁷ Similarly, the law of four states includes the right of publicity as a property right from which one might infer, at least tentatively, that the right is descendible: Michigan,²¹⁸ Missouri,²¹⁹ Oregon²²⁰ and Wisconsin.²²¹

The law of four states appears to specifically preclude, as a matter of statute or common law, a post-mortem right of publicity: Illinois,²²² New York,²²³Ohio²²⁴ and Pennsylvania.²²⁵

The remaining states have neither had the issue before the court nor adopted statutes specifically dealing with post-mortem rights of publicity. With only a relative handful of states having addressed the post-mortem right of publicity issue, it is somewhat difficult to predict the eventual shape this legal theory will take. Furthermore, the problem of divining the evolution of this right is compounded by the fact that the states that have adopted such laws have not done so uniformly. The aspects of persona that are protected, the duration of protection, and the type of unlicensed uses of the celebrity persona that are prohibited vary, in some instances quite considerably. That said, it would nonetheless facilitate a consideration of the future contours of the post-mortem right of publicity to review its current state. The following analysis is divided into: (1) the types of rights protected, such as name, likeness, and voice; (2) duration of the rights; and (3) types of unlicensed uses that are proscribed.

Although there has been relatively little sound-alike litigation, the few decisions that have been reported provide some useful insights. In Lahr v. Adell Chemical Co.,²⁴⁰ Bert Lahr, the "cowardly lion," was held to have sufficiently alleged a cause of action in unfair competition with respect to a "Lestoil" commercial featuring a cartoon duck with a voice provided by an actor who specialized in imitating the vocal sounds of Lahr. The court noted that Lahr had alleged that he had gained fame "because of his 'style of vocal comic delivery which, by reason of its distinctive and original combination of pitch, inflection, accent and comic sounds,' has caused him to become 'widely known and readily recognized . . . as a unique and extraordinary comic character.'"²⁴¹ The court observed that while it "might hesitate to say that an ordinary singer whose voice, deliberately or otherwise, sounded sufficiently like another to cause confusion was not free to do so . . . [Lahr had alleged]. . . a peculiar style and type of performance, unique in a far broader sense."²⁴² In Midler v. Ford Motor Company,²⁴³ Bette Midler was held to have a cause of action for misappropriation of her common law property right in her singing voice. In Midler the court emphasized the uniqueness of Midler's voice:

Two other cases deserve mention. In Sinatra v. Goodyear Tire & Rubber Co.,²⁴⁸ Nancy Sinatra brought an unfair competition action based on the use of "a singer whose voice and style was deliberately intended to imitate the voice and style of the plaintiff . . . ."²⁴⁹ It would appear the court was not as sure as Sinatra that her voice and style were unique: "One wonders whether her voice, and theatrical style, would have been identifiable if another song had been presented, and not 'her song' . . . ."²⁵⁰ The court expanded on its evaluation of uniqueness: "[T]here was no readily identifiable accent (Maurice Chevalier), range, quality, (Lahr or Andy Devine), or pitch which would distinguish it to the ordinary listener . . . ."²⁵¹ Contrasting Midler and Sinatra, one might conclude that uniqueness is a sine qua non of protection in sound-alike cases, at least in the Ninth Circuit.

More troublesome is Booth v. Colgate-Palmolive Company.²⁵² Actress Shirley Booth complained that a laundry detergent advertisement featuring a cartoon character named "Hazel" (Booth had starred in the situation comedy "Hazel" on television) used an imitation of her voice. Booth alleged property rights in her timing, inflection, tone and general performing style. The court did not address the uniqueness or lack thereof of Booth's voice, but decided against her unfair competition claim based on the Sears and Compco pre-emption theory,²⁵³ and on the fact that neither had Booth exploited her voice in connection with any product or service nor had her voice served a trademark function.²⁵⁴

Presuming that a court would interpret "voice" to mean only actual words spoken or sung by the actor during the actor's lifetime, a court would likely analogize the synthesized voice of the late actor to the "sound-alike" situation and therefore treat the sound-alike cases as at least instructive, if not precedential. The paucity of decisions makes it difficult to predict with certainty how courts will deal with the issue. But a tentative conclusion might be drawn from the language of Lahr, Midler and Sinatra: For a voice to be protected against imitation, whether by a human or by a synthesizer, it must be distinctive and not ordinary. Of course putting flesh on that skeleton may prove to be an awesome task. But, perhaps, a rough cut may be made by looking at actors who have historically been the subject of imitation²⁵⁵ (realizing that in part the imitation has involved mannerisms and not merely voice in many of the celebrity imitations): Gable, Bogart, Cagney, Wayne, Stewart, Hepburn, Streisand, Bette Davis, Mae West. In contrast, many other well respected actors have not been particularly the subject of impersonation: Muni, Tracy, William Powell, Lombard, Harlow. Obviously, whether a voice is sufficiently distinctive to warrant protection is a question not easily answered, ad hoc, and after the fact.

Assuming that a synthesized voice is that of an actor whose voice meets the "distinctiveness" threshold for granting protection against misappropriation, there remains the question of whether the exploitation of the synthesized voice in a motion picture would be a misappropriation. That issue is addressed below in Part D.

Some states that have not enacted post-mortem statutes have nonetheless found that a descendible right of publicity existed at common law. Furthermore, some states that have enacted post-mortem statutes have also recognized the possibility that there were also common law rights of publicity and the descendibility of such rights. The problem is when, if ever, do common law post-mortem rights of publicity expire.

In response to a question certified by the Eleventh Circuit Court of Appeals, the Supreme Court of Georgia held that there was a common law right of publicity, distinct from the right of privacy, and that the right of publicity was inheritable and devisable.²⁷⁰ However, the court did not reach the question, admittedly not asked by the Eleventh Circuit, whether the post-mortem right of publicity endured only for a finite time or perpetually, or to whom it descended. In applying New Jersey law to a Presley imitation, the federal district court for the district of New Jersey concluded that New Jersey recognized a common law right of publicity and that such right was descendible.²⁷¹ Like the King case in Georgia, the court in this "King" case did not address the issue of whether there were any time limits on this right, at least not directly.²⁷² The problem is further compounded by states that have not addressed the issue, either by case law or statute, of a post-mortem right of publicity.

In the absence of such guidance, a forum state may choose to assume that the law of the domiciliary state²⁷³ is like that of the forum state and one must also consider that Nevada's statute applies regardless of the last domicile of the celebrity.²⁷⁴ Finally, a state may focus on the fact the infringement complained of happened within its borders without ever addressing the domicile issue.²⁷⁵ Schumann v. Loew's, Inc.²⁷⁶illustrates the type of multi-jurisdiction infringement that could face a reanimator. In Schumann, the great grandchildren of the composer, Robert Schumann, alleged that the motion picture Song of Love violated their rights and the rights of the deceased composer "under the laws of every country in the world."²⁷⁷ Happily for the defendant in Schumann, the court was able to find grounds to dismiss the various actions. But the case is a sharp reminder of the difficulties facing a reanimator if he must deal with a post-mortem right of publicity. As other commentators have suggested, a national law would go a long way toward reducing the complexity of the post-mortem right of publicity.²⁷⁸

When California State Senator William Campbell first proposed a law governing post-mortem rights of publicity, the American Civil Liberties Union and other interested parties voiced concern about the chilling effect the bill might have on First Amendment rights.²⁷⁹ In response to those concerns the post-mortem right of publicity, as finally enacted, provides:

The California post-mortem statute applies to use "in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services."²⁸⁴ Florida prohibits unlicensed use "for purposes of trade or for any commercial or advertising purpose."²⁸⁵ Kentucky provides that no unlicensed use will be made "for commercial profit."²⁸⁶ Nebraska prohibits unlicensed use "for advertising or commercial purposes."²⁸⁷ Nevada's post-mortem statute governs "any commercial use."²⁸⁸ Oklahoma uses language identical to that of California.²⁸⁹ Tennessee's post-mortem statute covers use "as an item of commerce for purposes of advertising products, merchandise, goods, or services, or for purposes of fund raising, solicitation of donations, purchases of products, merchandise, goods or services."²⁹⁰ Texas states that there is a post-mortem property right in a person's "name, voice, signature, photograph, or likeness after the death of the individual,"²⁹¹ and then lists those uses that may be made of the property without permission;²⁹² presumably every other use would require a license. Virginia prohibits the unlicensed use of a person's name, portrait or picture "for advertising purposes or for purposes of trade."²⁹³ The language of the statutes covers a spectrum from the very specific enumeration of California to the open-ended "for commercial profit" of Kentucky. It seems reasonably clear that unlicensed post-mortem advertising would be prohibited by all of the statutes.

Although advertising cases have dealt, to date, exclusively with living celebrities, the cases are instructive of the courts' philosophy with respect to advertising. One has only to look at Carson,²⁹⁴ Coors,²⁹⁵ Lahr,²⁹⁶ Midler,²⁹⁷Motschenbacher,²⁹⁸ Onassis,²⁹⁹ and Waits³⁰⁰ to see that courts are very unsympathetic to the unlicensed advertiser. However, with respect to trade as opposed to advertising, the picture is not so clear. For purposes of licensing film for theatrical or television exhibition, the film itself might not be considered goods, but the sale of film in pre-recorded video-cassette format would clearly be considered a sale of goods.³⁰¹ But for that matter, copies of newspapers and magazines and books are likewise goods. And newspapers, magazines and books implicate First Amendment rights. So, the mere fact that a motion picture may be goods is not necessarily dispositive of the issue of whether a motion picture falls within the prohibitions of the various statutes and the various common law post-mortem rights of publicity. Case law to date may be instructive in determining the applicability of post-mortem statutes and common law to reanimation.

"Purposes of trade" may well be like obscenity: difficult to define, but recognized when seen.³⁰² Posters, even posters bearing legends, have been held to be for trade purposes.³⁰³ Not surprisingly, shaving gel has been held to be for trade purposes,³⁰⁴ as have bubble gum cards,³⁰⁵ baseball regalia³⁰⁶ and plastic busts.³⁰⁷ But, where the exploitation complained of has been in the media, courts have been more reluctant to grant relief, lest free speech be chilled. Books³⁰⁸ and magazine articles³⁰⁹ about celebrities (even magazines of dubious communication value³¹⁰) have been insulated against right of publicity claims, because of First Amendment considerations. Motion pictures³¹¹ and plays³¹² about individuals in the public eye have also been shielded by the First Amendment.

However, where the media use is perceived to be of questionable communicative content, courts have found, or at least raised the issue of, the use being merely an advertisement or for purpose of trade.³¹³ In Midler, the court acknowledged that "[t]he First Amendment protects much of what the media do in the reproduction of likenesses or sounds."³¹⁴ The court went on to state that "[t]he purpose of the media's use of a person's identity is central. If the purpose is 'informative or cultural' the use is immune; 'if it serves no such function but merely exploits the individual portrayed, immunity will not be granted.'"³¹⁵ In Grant v. Esquire, Inc.,³¹⁶ the court suggested that if Esquire used Grant's picture "merely to attract attention" that use would be for purposes of trade.³¹⁷ In Ali v. Playgirl, Inc.,³¹⁸ the court held that a likeness of Ali "falling somewhere between representational art and cartoon"³¹⁹ was included in the magazine solely for purposes of trade because there was "no such informational or newsworthy dimension"³²⁰ to defendant's use. In Eastwood v. Superior Court,³²¹ the court held that the deliberate fictionalization of Eastwood's personality would constitute commercial exploitation.³²² The mere fact that a publisher or producer expected to make a profit from exploiting a story about a celebrity is not of itself enough to invoke a right of publicity claim.³²³ But Grant, Ali and Eastwood suggest that unless there is some protectable First Amendment expression such exploitation would be a violation of the right of publicity. How does all of this apply to reanimation?

The decisions in which courts have denied recovery for invasion of privacy or publicity rights because of overriding First Amendment concerns have involved books, articles or performances, live and on film, about the celebrity. Newspapers and biographers are free to write about a celebrity. Publishers are free, with some exceptions, to use photographs of the celebrity to illustrate a book or article about the celebrity. Film and stage producers are free to mount performances about the celebrity and to employ an actor that resembles the celebrity. But it takes no citation to declare that no writer could require a living celebrity to grant an interview or to pose for a picture. Nor could a producer require the celebrity to appear in a film or play about the celebrity simply because such appearance would enhance the realism of the production. The First Amendment does not supersede the Thirteenth Amendment.³²⁴ Celebrities have appeared in films as themselves on any number of occasions: Gene Krupa and Harry James in The Benny Goodman Story,³²⁵ Frances Langford in The Glenn Miller Story,³²⁶ and Monty Wooley in Night and Day,³²⁷ the film biography of Cole Porter.

Perhaps the most dramatic example of celebrity self-portrayal is the film To Hell and Back.³²⁸ Audie Murphy was the most decorated serviceman of WW II. For his extraordinary heroism he was given the nation's highest decoration, the Congressional Medal of Honor. Following the war, Murphy pursued an acting career, mostly starring in westerns. But in 1955 he portrayed himself in the autobiographical film, To Hell and Back. While anyone might have been free to write about or produce a film based on Murphy's World War II exploits, no one could have required Murphy to star in the film. Even if he contracted to play himself, as he in fact did, had he decided not to honor the contract no court would have issued an injunction requiring him to perform.³²⁹ At most, a negative injunction prohibiting him from performing for others would have been issued.³³⁰ Should the exploitation of a deceased actor be treated differently from the exploitation of an actor in life? Well, first of all, there is no Constitutional impediment to involuntary servitude with respect to a reanimated actor.³³¹ So, any proscription against unlicensed exploitation of a resurrected actor would have to be based on other considerations.

Employing the language of Midler, if the reanimation is "informative or cultural," then the use should be exempt from the post-mortem right of publicity. But if the use is merely "exploitive," or merely to attract attention, a different conclusion should be drawn. For instance, the unlicensed sale of T-shirts, posters, plaster busts and other products of little or no First Amendment value³³² is proscribed by many states. It is easy to articulate such a litmus test, but what criteria or standards will be used to distinguish between the permitted and the proscribed? At one extreme might be situations where it is clear that the late star is being used only for exploitive purposes, purposes that had minimal communicative content, for example a brief cameo as a corpse on a slab. At the other end of the spectrum would be the reanimated actor appearing in his own, unfictionalized life story.

More difficult to assess are situations in which the reanimated actor is clearly serving a story-telling role. Perhaps the distinction drawn by Judge Mosk in his concurring opinion in Lugosi v. Universal Pictures,³³³ between actors simply playing a role, such as Gregory Peck as General MacArthur, George C. Scott as General Patton or Charleton Heston as Moses, and actors performing as themselves, or as characters of their own device, such as Groucho Marx, Red Skelton, Abbott and Costello, or Laurel and Hardy, would be useful in deciding this issue. In Chaplin v. Amador,³³⁴ Charlie Chaplin successfully enjoined the actor Charles Amador from appearing, under the name "Charlie Aplin," in the universally-recognized garb of the "Little Tramp" - the ill-fitting vest, tight fitting coat, and too-large pants and shoes. In Price v. Worldvision Enterprises,³³⁵ the defendant was enjoined from producing and distributing a television series entitled "Stan 'n' Ollie" in which actors Chuck McCann and Jim McGeorge, respectively would portray Oliver Hardy and Stanley Laurel. In Estate of Presley v. Russen,³³⁶ the court, while denying an injunction until the plaintiff made "a showing of immediate, irreparable harm to the commercial value of the right of publicity . . . ."³³⁷ found that:

Predicting what courts would do if faced with reanimation today is fraught with uncertainty. Only a relatively few states have addressed the issue of a post-mortem right of publicity; none have specifically addressed reanimation. The states that have adopted a post-mortem right of publicity, legislatively or judicially, have not been uniform in the scope, duration and types of prohibited exploitation. And except, perhaps, to the extent Price,³⁴² Russen³⁴³ and Day & Night Co.,³⁴⁴ provide some insight into post-mortem imitation, there is no precedent to guide us at the moment. If one concludes that reanimation should be subject to a post-mortem right of publicity, then clearly, either there should be a federal post-mortem right of publicity, or the states must adopt a uniform post-mortem statute that is uniform in scope, duration and proscribed unlicensed exploitation. To do less would be to drastically impede this new technology. Of course, the threshold question is: should reanimation be subject at all to a post-mortem right of publicity, be it state or federal. The next section addresses that question.

With respect to the public, the goal to be satisfied is the desire of that public to see technically high quality synthetic replicas of deceased performers in new motion pictures, presumably also starring living actors. I would define high quality by how faithful the replica is to the late actor, not only physically, but also in acting ability. The public will also desire that the reanimation of an actor occur during their own lifetime; this desire may be particularly true for the older members of the viewing public for whom nostalgia plays an increasingly important role (one has only to refer to the success of "oldie but goodie" record -- or today, C.D. -- sales for validation of that observation). Thus, long delays in the reanimation of deceased performers would not be in the public interest. It is likely that the public would desire that the roles assigned to the reanimated actor be consistent with the general image of the actor while alive. While innovative roles might be acceptable, it is doubtful that the public at large would desire to see the reanimated actor in roles totally incompatible with the late actor's image, even if some segments of society might desire this (e.g., pornography). The public, obviously, is interested in paying as little as possible to see reanimation, without a sacrifice in the quality of the reanimation. If reanimation is not subject to a post-mortem right of publicity, the cost of creating the computer replica is reduced by the licensing fee saved. Presuming that the savings are passed onto the public, the public interest is served.

But a reduction in the cost of reanimation is not the most important consideration favoring an exclusion of reanimation from the ambit of the post-mortem right of publicity. One argument against including reanimation among the rights protected by a post-mortem right of publicity is that the owner of those rights might refuse to license the rights altogether or demand such unrealistic fees that no producer would be willing to buy. While it is true that the post-mortem right of publicity will eventually terminate, throwing reanimation rights into the public domain, the public could be denied the right of enjoying a reanimation for 50 or 100 years, or perhaps even longer. This means that at least two generations of moviegoers could be deprived of seeing a reanimation, and these would likely be the generations who had an awareness of the actor while alive and who, therefore, might be the most keenly interested. The problem is further compounded if, in order to create the three-dimensional model, copyright permissions might be required. One might find a situation in which the copyright owner is willing, but the post-mortem rights owner is not, or vice-versa. This could lead to the type of undesirable result, from a public point of view, that occurred in Chamberlain v. Feldman.³⁴⁵ There, the defendant owned the original, unpublished manuscript (holographic and signed) of a Mark Twain work, A Murder, A Mystery and A Marriage, but the defendant was held to not own the copyright. The owners of the copyright were successful in barring publication of the work, thus denying the public the enjoyment of a "new" Mark Twain work.

The quality of the reanimation is important to the public. If reanimation is not subject to the post-mortem right of publicity, what effect might that have on the quality of the computer-generated replica? If reanimation is not protected by the right of publicity, will any reanimator undertake the expense of creating a three-dimensional model of a deceased actor, knowing that anyone else with the technology can do the same thing, and depending on how one views the copyrightability of the reanimated model, perhaps more cheaply. If reanimation is subject to the post-mortem right of publicity, a reanimator might be able to negotiate an exclusive license. That said, perhaps putting reanimation in the public domain, while depriving the heirs of economic benefits, will foster a healthy competition to produce the best in reanimation quality.

Arguments can be made that reanimation should be included within the rights protected by a post-mortem right of publicity. One argument is that the financial benefits of the actor's labors in life should, in death, go to his heirs. While the opinion in Lugosi may not have been a paradigm of clarity, the reasoning of Chief Justice Bird, in her dissent, as to who should enjoy the fruits of post-mortem rights is quite cogent:

There is one final consideration. What of the actor who does not want any commercial exploitation of his post-mortem celebrity status; should his wish be honored? If reanimation is subject to a post-mortem right of publicity, the actor could leave his post-mortem rights to a beneficiary, on the condition that the beneficiary would not exploit the rights. It should be noted that a bequest to an individual may not be truly effective, in that if the beneficiary were to ignore the condition of the bequest, the bequest could be terminated - which would result in the post-mortem rights going to statutory heirs who might themselves exploit the rights! Faced with the possibility of that prospect, the actor might leave the post-mortem rights to a testamentary trust with instructions that the rights were not to be exploited. In any event, a performer would be able to deny a reanimation to the public for the term of post-mortem protection, which might be for as much as 100 years. While the public would be deprived of the enjoyment of reanimation for the term of protection granted by the law of the domicile, such deprivation of public enjoyment is equally true with respect to the unpublished works of a deceased author who leaves his copyright to a testamentary trust with terms that the copyrights are not to be exploited.

I will leave it to the reader to judge whether the benefits of including reanimation in post-mortem rights of publicity - economic benefits to the actor or his heirs, incentives to create the three-dimensional model based on exclusive licenses, and the possibility of imposing contractual aesthetic considerations - outweigh the consequences - possible denial of reanimation for the term of post-mortem protection, and the loss of competition that might lead to a higher quality reanimation. If one concludes that reanimation should be subject to a post-mortem right of publicity, one must then consider the ramifications of that conclusion.

One would suppose that the person who would be most concerned that the reanimation reflect credit on the actor would be the actor himself. If the transfer of reanimation rights is inter vivos, and presuming the actor has sufficient "box office" appeal, the actor could specify the types of roles and the billing that the synthetic actor would have, could enumerate the kinds of roles specifically proscribed, and could even specify the acceptable MPAA ratings (e.g., NC 17, PG 13,). However, if the inter vivos transfer is done early in the actor's career, a time when presumably he is in a relatively disadvantageous bargaining position, the producer may dictate the terms of the transfer, including no limitations on the types of post-mortem exploitation of the reanimated actor. Even if an actor might otherwise have significant stature in the film community, he might be in a disadvantaged position, for example, because of serious medical problems known to the industry at large (e.g., for a John Wayne or a Susan Hayward). If the transfer of reanimation rights is post-mortem, one would hope that the beneficiaries of the actor's post-mortem publicity rights would seek to extract the same restrictions on roles that the actor would. But there is no guarantee that they will - perhaps because of a lack of bargaining power, or, worse yet, because of a focus on the dollar, the post-mortem transfer of publicity rights might have little or no restrictions on exploitation. If the actor is not able to obtain favorable terms in an inter vivos transfer of post-mortem rights, or if the actor does not make an inter vivos transfer, what laws will protect his memory and who will champion his cause? If this nation ultimately overcomes its apparent abhorrence of a codified moral rights law beyond the parsimonious recognition in the Copyright Act³⁴⁸ and the scattered state provisions,³⁴⁹ perhaps, as discussed in Part VI of this article, a federal moral rights act could be enacted - one that would protect not only the creators of works but the interpreters of works as well. Absent federal or state protection of performer's post-mortem moral rights, the Screen Actors Guild would be the next best hope. Once reanimation becomes an economic reality and not merely an exotic experiment, the Screen Actors' Guild could insist on terms on moral rights-type protection with respect to reanimation in agreements with producers.

Assuming that reanimation rights are the subject of the post-mortem right of publicity, what are they worth? Obviously, the more marketable an actor is during life, the more valuable reanimation rights would be. But the term of protection of such rights must also be considered. In California, a personal service contract can be for no more than seven years,³⁵⁰ and no one can force an actor under contract to play a particular role; at most, an actor can be suspended or terminated. But reanimation is not a "personal service," because the synthetic actor is not a person, he is a property; the producer will likely want the property for its full term, e.g., in California, 50 years.³⁵¹ However, once protection of post-mortem rights terminates, anyone would be free, at least as far as the right of publicity is concerned, to exploit their own reanimated version of the late actor. Therefore, in valuing such rights, the term of protection must be taken into account. Though the issue is not totally free from doubt,³⁵² it is likely that the term of protection will be determined according to the law of the jurisdiction in which the actor was domiciled on the date of death.³⁵³ That term might be, under existing laws, as short as 10 years³⁵⁴ or as long as forever.³⁵⁵ Where the transfer of post-mortem rights is inter vivos, the actor will have some state as domicile (although one might well have to consider an actor even though a U.S. citizen domiciled outside of the United States). But there is no guarantee that the actor will be domiciled in that state at death. Presumably, in an inter vivos transfer of post-mortem rights, the then-living actor would want a quid quo pro while alive, i.e., cash. However, even if the reanimation contract stipulated that the actor would remain domiciled in a designated state, there is no guarantee that in fact, he would be so domiciled at death. The producer faces the risk that the actor might be domiciled at the time of his death in a jurisdiction with a relatively short term of protection. Faced with the uncertainty of the duration of post-mortem protection, the producer would likely demand that part of the payment for the inter vivos transfer of post-mortem rights be withheld until death, and that any payments due would be reduced if the post-mortem term of protection of the domicile at death were less than the term contemplated in the contract. However, even this type of "escrow" arrangement would not guarantee protection for a producer who gave "up front" partial payment, if the actor died domiciled in a jurisdiction that did not recognize a post-mortem right of publicity at all, unless that jurisdiction were willing to recognize the post-mortem right of publicity statute of the jurisdiction governing the inter vivos contract.

Part V of this article discusses the impact reanimation may have on those with trademark or other proprietary interests in the persona of the actor. Prudence dictates that any contract transferring reanimation rights take into account the interests of such third parties.

Thus, the fact that the name, and perhaps even a likeness of the late actor is registered as a federal trade or service mark, or as a common law or state-registered mark, will not prevent the reanimator from listing the deceased actor's name in the credits-at least where it is clearly indicated that it is the synthetic version of the actor-or from producing a photo-play using visual images of the synthetic version of the actor. Presumably, it would not be an infringement if a frame of the motion picture captured an image identical to that of the trademark image, since the former is not being used in a secondary sense, but in a primary sense. But care must be taken, as discussed in Section C below, to avoid any confusion as to the identity of the actor, as when the portrayal is not by the late actor himself, but rather by a synthetic look-alike.

Section 43(a) of the Lanham Act is "designed to afford broad protection against various forms of unfair competition and false advertising."³⁸² Since "as a general rule, the same facts which would support an action for. . . common law unfair competition. . . would support an action for unfair competitive practices under §43(a),"³⁸³ section 43(a) and state unfair competition are discussed together.

Does section 43(a) even apply to film credits and film advertising? The district court in Smith v. Montoro³⁸⁴ held that misidentification in film credits and film advertisements were "not the economic equivalent of palming off or misuse of trademarks or trade names."³⁸⁵ The district court also questioned the actor-plaintiff Smith's standing to sue "since the plaintiff [was] not in any sort of competition with the defendants."³⁸⁶ On appeal, the Ninth Circuit disagreed with the district court on both its conclusions. With respect to the applicability of § 43(a) to actor credits and film advertising, the Ninth Circuit stated:

Smith dealt with "express reverse palming off"; the film distributor had removed the actor's name from both the film credits and advertising material, and substituted the name of another actor, "Bob Spencer." In reanimation the issue will not be express reverse passing off but rather with express passing off. If the film credits simply were to list the synthetic actor as "Clark Gable," that would be a clear case of express palming off, i.e., passing off the synthetic "Clark Gable" as the actual Clark Gable. To avoid express passing off, the reanimator will have to make clear in the credits that the actor appearing in the film is not Clark Gable but is a synthetic Clark Gable. With respect to advertising, the reanimator absolutely should not use photographs of the actual actor, e.g., Clark Gable, since this would be an implied passing off.³⁹² But even where photos or likenesses of the synthetic actor are used, or where the actor's name is used in advertising, the reanimator should make it abundantly clear that the actor in the film is synthetic, and that others who would have standing to complain have "nothing to do with the project - whether that is accomplished through a bold and unequivocal disclaimer, the staging of the photograph, or the accompanying advertising copy."³⁹³

In addition to federal law, the reanimator must also consider state unfair competition law. As stated by McCarthy, "Liability [for unfair competition] can result from the buyer's likely confusion between two products or services based upon the total impact of all aspects of the parties' selling efforts."³⁹⁴ In Chaplin v. Amador³⁹⁵ the court enjoined Charles Amador from imitating Chaplin's character of his own devise, the "Little Tramp." In upholding the injunction against Amador's appearance as "Charlie Aplin," the court stated that "The right of action in such a case arises from the fraudulent purpose and conduct of appellant and injury caused to the plaintiff thereby, and the deception to the public."³⁹⁶

In Chaplin, the defendant attempted to compete with Chaplin, deceptively - according to the court - by adopting identical garb and a very similar name. Because Chaplin was alive, the public might reasonably, albeit mistakenly, have believed that Charles Amador as "Charlie Aplin" was, in fact, Charles Chaplin in his well-known portrayal. Two things should be noted. First, Amador used a character created by the plaintiff, not merely an imitation of the unadorned plaintiff. Second, the plaintiff was alive at the time. As was suggested in "Post-mortem Right of Publicity" above, one might distinguish between an actor in a self-created character, e.g, the "Little Tramp," and the actor who simply plays an assigned role. The Restatement of Torts § 711 provides that one who "markets goods with an unprivileged imitation of the physical appearance of another's goods is liable to the other for relief . . . ."³⁹⁷ Section 741 of the Restatement states that it is an unprivileged imitation if, in addition to other criteria, "the copied or imitated feature is nonfunctional, or, if it is functional, [the imitator] does not take reasonable steps to inform prospective purchasers that the goods which he markets are not those of another."³⁹⁸ Where the actor adopts a particular garb or particular idiosyncrasies in creating the character - the mustache and leer of Groucho, fidgeting of an Ollie, or the garb of the "Little Tramp" - that might be analogized to non-functional features, the imitation would not be privileged. But where the actor simply takes on an assigned role, then his physiognomy, etc. might be analogized to functional features. In that case, the reanimator need only take steps sufficient to inform prospective purchasers that the goods (the synthetic actor) which he markets are not those of the other (the films showing the late actor). It should be reiterated that, unlike in Chaplin, in reanimation, the actor is dead and the competition is between films of the actor created in his lifetime and films showing his synthetic counterpart. In Estate of Presley v. Russen,³⁹⁹ the court stated:

One might conclude that the use of the synthetic actor itself is not unfair competition, and that a claim of unfair competition may be avoided merely by indicating, by an appropriate disclaimer, that the actor is synthetic and is not authorized, licensed or sponsored by any third parties - including the owners of films in which the actor appeared in his lifetime.

A significant number of states have anti-dilution statutes including the very important entertainment states of California,⁴⁰³ New York,⁴⁰⁴ and Tennessee.⁴⁰⁵ The dilution doctrine remains solely a state doctrine, having been omitted from the Trademark Law Revision Act of 1988. The reanimator may well ask what acts constitute "dilution"? One court has defined dilution as a use which causes a "gradual diminution in the mark's distinctiveness, effectiveness and hence value. This kind of infringement corrodes the senior user's interest in the trademark by blurring its product identification or by damaging positive associations that have attached to it."⁴⁰⁶ One form of dilution is "tarnishment," a use by the defendant of plaintiff's mark "in an unwholesome or degrading context,"⁴⁰⁷ or "out-of-keeping with plaintiff's high quality image."⁴⁰⁸ Linking a trademark to illegal drugs⁴⁰⁹ or risque⁴¹⁰ or pornographic⁴¹¹ activities has been held to be a dilution of rights, as have uses that dilute the prestige of the mark because of the nature of the other product.⁴¹²

Dilution arguments based on a "quality and prestige" argument⁴¹³ might be raised against a reanimator because the quality of the synthetic actor is poor. More likely, the issue will arise because of the role in which the reanimated actor is cast, particularly where the role is inconsistent or perhaps even antithetical to the image generally portrayed by the actor. The sensitivity to image is illustrated by this excerpt from a 1948 Roy Rogers/Republic Productions contract:

While the moral rights provisions of the Berne Convention have not been adopted in gross in the United States, they provide a framework within which to consider the applicability of the doctrine of moral rights to reanimation. Article 6 bis of the Berne Convention provides:

Two arguments might be made for the application of moral rights to these issues. First, if the rationale of moral rights is to protect the honor and reputation of the actor, would not a distorted image of the actor, or a miscasting, or a poor quality of film, be a more direct attack on that honor and integrity than a distortion, mutilation or other modification of a work of that actor - and therefore be even more deserving of moral rights protection? Second, one might consider that in participating in the creation of a film an actor could be said to be a contributor to (if not in a narrow legal sense an "author" of) the work, i.e., the film.⁴²³ Since the late actor is not himself the cause of the poor quality of image, the miscasting or the poor overall quality of the film, the spokesman for the late actor might argue that his work (the contribution of the late actor's synthetic counterpart) has been distorted by the producers of the film. The second argument goes to the direct application of the moral rights provisions, whereas the first argument would justify the application of the doctrine by analogy, if not directly. If either or both of these arguments is persuasive, then Article 6 bis would provide a vehicle for protecting the late actor against shoddy or inappropriate exploitation of his computer-generated "clone." How would this interpretation of Berne affect U.S. "moral rights," such as they may be?

When the United States made a tentative step towards codifying moral rights, the scope of protection was narrow. Section 106A extends moral rights protection to a "work of visual art." A work of visual art is defined as "a painting, drawing, print or sculpture,"⁴²⁴ and includes "still photographs."⁴²⁵ Motion pictures are specifically excluded from the definition of "visual art."⁴²⁶ Furthermore, for works created on or after June 1, 1991, the effective date of the Visual Artists Rights Act of 1990,⁴²⁷ moral rights protection only endures for the life of the author.⁴²⁸ Thus, those seeking relief against inappropriate post-mortem exploitation by the reanimator will receive no succor from the moral rights provision of Title 17, at least as presently enacted.

Several states have enacted moral rights statutes.⁴²⁹ These statutes provide moral rights protection to an artist with respect to the artist's creation - painting, sculpture, etc. - but not protection to the artist's persona. Whether a state would be willing to extend protection by analogy to the persona of an actor as embodied in a reanimation is uncertain, but the possibility should be explored. The Massachusetts⁴³⁰ and New Mexico⁴³¹ statutes would, arguably, extend moral rights protection to reanimation. Both statutes specifically include film in the types of works protected, and both extend protection to 50 years after the death of the author (by analogy, the actor, in our case).⁴³² In Massachusetts, the Attorney General may act on behalf of the deceased author. A number of states specifically exclude film from coverage: Louisiana,⁴³³ Nevada,⁴³⁴ New Jersey,⁴³⁵ New York,⁴³⁶ and Rhode Island.⁴³⁷ One might argue that it is not the desecration of the film that is in issue, but rather the desecration of the actor. As the extension of protection that is sought is not of the work of the author (actor), but of the author (actor) himself, the exclusion of film makes that application of the statutes, by analogy, more difficult. California extends protection to "fine art" (defined as original painting, sculpture or drawing or work of art in glass) for the life of the author and fifty years after his death; post-mortem, the rights may be exercised by his "heir, beneficiary, devisee, or personal representative."⁴³⁸ Connecticut extends protection to drawings, paintings, etc. for the life of the author and fifty years after death; heirs, etc., may exercise the post-mortem rights.⁴³⁹ Maine extends protection to works of "fine art" and makes no mention of post-mortem protection.⁴⁴⁰ Pennsylvania protects original works of art in any medium (which arguably would include film) but makes no provision for descendibility protection.⁴⁴¹ Whether the statutes of California, Connecticut, Maine or Pennsylvania would extend protection, by analogy, to the reanimated actor is questionable. Of all the states with moral rights statutes, Massachusetts appears to be the most hospitable to possible post-mortem protection of actors against inappropriate exploitation. But, for the moment, neither federal nor state moral rights statutes appear to be an effective source of protection.

While the moral rights statutes, such as they are, do not appear to offer much, if any, protection to creators in other than the visual arts, protection has been obtained under a variety of rubrics including libel, false attribution, privacy and contract violation. While courts have been reluctant to base relief on a sui generis moral rights tort, preferring merely to mention the notion of moral rights while going on to grant or deny relief on grounds more comfortable to common-law nations,⁴⁴²it is clear that courts have been willing, on occasion, to grant relief based on moral rights considerations, even if they have been chary of labeling the cause as one sounding in moral rights.⁴⁴³ A review of cases involving false attribution or distortion will give some insight into the effectiveness of this patchwork of theories to substitute for a moral rights law.

Furthermore, libel laws are an inadequate substitute for another reason. Few states have enacted 'libel of the dead' criminal statutes.⁴⁴⁸ Fewer still have enacted civil statutes, and those that have seem reluctant to enforce them.⁴⁴⁹ The statutes typically proscribe acts that "blacken" or "vilify" the memory of the deceased. The most likely occasion for violation of a libel of the dead statute will be when the reanimator exploits the synthetic actor in a role that, if undertaken by the late actor in life, would have subjected him to criminal prosecution. In effect, placing the synthetic replica in such a situation is akin to suggesting that the actor in life would have played such a role, which in turn is tantamount to accusing him of a crime.⁴⁵⁰ If the reanimated actor is playing a real person, living or dead, such a possibility must be considered. If the characterization of the real person, as portrayed by the reanimated actor, is itself libelous, and particularly if the portrayal would be in violation of a criminal libel statute, then placing the reanimated actor in such a position might itself be considered a libel of the deceased actor. The most likely occasion for such a criminal prosecution would be when the film is obscene.⁴⁵¹ If the quality of the reanimation is itself poor, it is improbable that poor quality, per se, would constitute a libel of the dead, under either criminal or civil law.⁴⁵²

If the film itself, apart from the quality of the reanimation, is not in keeping with the type of film the actor performed in during life, there is a possibility that such use of the reanimated actor in an inferior quality film would itself be a libel. Attribution of inferior quality work products to a living individual has been held to be a libel.⁴⁵³ Whether the same standard used for determining that a false attribution of an inferior work to a living person is a libel should also be applied to the false attribution of an inferior work to a deceased person is a question not free of difficulty. One could envision situations in which the distortion is not so outrageous as to constitute a "blackening" or a "vilification" of an actor's memory, but which nonetheless would deserve redress had there been a droit moral provision.

In Gilliam, the court recognized that some latitude must be given with respect to minor editing changes: "Courts have recognized that licensees are entitled to some small degree of latitude in arranging the licensed work for presentation to the public in a manner consistent with the licensee's style or standards."⁴⁶² But the Gilliam court went on to say, "That privilege, however, does not extend to the degree of editing that occurred here especially in light of the contractual provisions that limited the right to edit Monty Python material."⁴⁶³ And in Preminger, the court invited the producer/director to make application for injunctive relief if cuts were made that were not minor, but so major as to constitute a "mutilation," citing as examples cutting the film to 100 minutes or 53 minutes total running time.⁴⁶⁴ Thus, we might conclude that even in the absence of specific moral rights protection in a contract, a court will grant relief when the alteration is so serious as to constitute a "mutilation."

However, short of "mutilation," other "distortions" of the actor's memory, as far as contract law is concerned, would be left to the parties to resolve. The courts' language appears to place the burden on the talent to define, contractually, what is proscribed, rather than to place on the exploiter of that talent the burden of bargaining for what is permitted. As interpreted by courts faced with a moral rights issue, contract law seems to favor property rights over moral rights, a not surprising result given our common law heritage. In short, contract law is, at best, a "crap shoot" as far as moral rights are concerned. On the other hand, a moral rights law would be less unpredictable in protecting an actor's reputation. A moral rights approach would shift the burden to the talent exploiter, reserving to the talent the right to prohibit all unmentioned alterations.

The piecemeal approach of the United States to moral rights, while perhaps not a pastiche, is a poor substitute for the integrated approach an adoption of droit morale, in full panoply, would yield. Moral rights have implications far beyond reanimation considerations. But reanimation provides a microcosm of the creative universe. It is, perhaps, not too great a leap of faith or logic to suggest that a moral rights law that addresses the issues raised by reanimation might be appropriate to a broad spectrum of creative activities.

I would suggest that a moral rights law should be adopted at the federal level rather than the state level. Transaction costs would be less if there were a uniform law. While a uniform state law might provide a solution, experience demonstrates that the uniform adoption of proposed uniform laws is a goal not easily achieved; witness the forty-year history of the Uniform Commercial Code. A federal law would ensure the kind of uniformity that is desirable in what is clearly, with respect to film, both an interstate business and an international business. The Commerce Clause of the Constitution provides a sufficient legal basis for adoption of a national moral rights law, should Congress decide that moral rights should not be integrated into the Copyright Act, as Congress did so decide with respect to visual artists' moral rights. Since the adoption of a comprehensive, national moral rights law would be a departure from our long-standing position on the issue, and given the pragmatics of politics, divorcing moral rights from copyright may be politically unrealistic. However, as previously stated, moral rights, which could be constitutionally supported under the Copyright and Patent Clause of the Constitution, could also be justified by the Commerce Clause, if a decision were made to decouple moral rights from copyright.

State statutes could provide standing to the Attorney General acting in parens patriae, to the next of kin, or to the actor's estate. If a national moral rights act is adopted, it should carefully spell out the extent to which it pre-empts state laws, civil and criminal, including "libel of the dead" statutes. Of particular concern would be the relation of the federal moral rights to the Lanham Act Section 43(a) and state unfair competition and anti-dilution statutes. If trademark owners and those with similar economic interests were given standing to sue under the moral rights law, pre-emption of the federal statutes and state law would be appropriate. However, it may be preferable to leave trademark and other economic-interest plaintiffs to the Lanham Act and state law, since their interests are solely to prevent economic harm and only incidentally to preserve the integrity of the memory of the late actor. However, one could make the argument that distinguishing between economic and personal interests could lead to inconsistent treatment of what is, at base, a moral rights violation. On balance, I believe that retaining the status quo with respect to trademark and related issues is the preferred course.

If the federal moral rights law provides civil relief only and avoids criminalizing breach of its provisions, there are a number of advantages. By not including criminal provisions, the language of the statute, arguably, can be less specific than it would have to be if criminal sanctions were involved. Omitting criminal provisions will help to reduce the caseload of the federal judiciary; states are perhaps in a better position to decide what conduct is deserving of criminal sanctions in light of their particular circumstances. And finally, it will not be necessary to address pre-emption as to state criminal laws, such as "libel of the dead" statutes.

With respect to duration of moral rights protection, one might adopt the French position of perpetual protection. However, if this position were to be seriously entertained, Constitutional issues would have to be addressed. First, moral rights could not be incorporated in the Copyright Act, since the Constitution⁴⁶⁷ directs Congress to grant protection for a limited time only. On the other hand, basing Congressional authority to legislate moral rights on the Commerce Clause removes the time impediment posed by the Copyright/Patent clause. However, one must ask whether perpetual, as opposed to a limited-duration, protection is advisable. In her dissent in Lugosi v. Universal,⁴⁶⁸ Chief Justice Bird suggested, with respect to a post-mortem right of publicity, a term of life plus 50 years. A similar suggestion was made by the court in Estate of Presley v. Russen.⁴⁶⁹ Moral rights could be similarly limited.

I would suggest that a time limit be placed on moral rights. I do so for several reasons. As time passes, descendants multiply; which of the great-great-great grandchildren are to have standing? If there are no heirs, must some government official forever be guardian of an actor's integrity? As society evolves, what yardstick is to be used to measure the inappropriateness of a role, that existing when the actor died, or those of the current generation? On a practical level, would Congress pass a moral rights statute that would give perpetual protection? A moral rights statute grants a type of personal monopoly - a perpetual monopoly would likely not be politically acceptable. If life plus 50 years would be too short, perhaps life plus 75 or 100 years would be sufficient.

Finally, one must decide the specificity of the statute's wording. Detailed language serves to give specific guidance to the reanimator and others involved with moral rights issues. But detailed guidelines deprive courts of flexibility in dispensing justice and detailed guidelines are an invitation to the devious. Broad language provides flexibility, a quality that lends itself to an ever-evolving society.

The prospects of reanimation are exciting and boundless. Acting dynasties may find the living performing with their ancestors; Drew Barrymore may find herself teamed with her grandfather John and her great-aunt and uncle, Ethel and Lionel. Dream casts assembled across generations would enrich the silver screen. Society might be able to rectify, in some small way, social ills of the past. Actors from minority groups who had been given only stereotypical roles during their lifetime or who were cast in films with limited, ethnic distribution could be cast in serious roles with general appeal. Actors denied the opportunity to explore subjects taboo during their lifetimes would have the opportunity through reanimation to address the once-forbidden topics. But, unless the legal issues implicated by reanimation are addressed in a thoughtful, comprehensive and cohesive way, reanimation may find itself strangled at birth.

Reanimation technology is still in the embryonic stage of development. In fact, it is likely that reanimation will not reach the silver screen until early in the twenty-first century. There is time to explore the legal issues raised by this fascinating innovation in entertainment. This article has discussed a number of issues raised by reanimation; others may occur to the reader. There is time to debate the best ways of responding to the legal issues raised. Too often in the past, the legal profession has lagged behind the scientific community. Playing legal catch-up might impede rather than foster innovation. I do not suggest that laws be drafted before we fully understand the ramifications of the technology. But it is not premature for the legal profession to join the scientific community in discussing the entwined legal and technical issues of reanimation. The readiness is all.