Reusing footage of deceased actors is a growing business, but Hollywood should be as concerned about the digital avatars of the living, writes Adrian Pennington

James Dean (1955 - Warner Bros. All rights reserved.)

James Dean: Deceased 1950’s icon proposed for a new Vietnam war film

Source: 1955 - Warner Bros. All rights reserved.

The resurrection of 1950’s icon James Dean proposed for a new Vietnam war film is the latest in a growing army of the thespian dead but CG simulation is posing equally great ethical and legal questions for the living.

With sophisticated facial and whole body 3D scanning increasingly common there are unresolved issues over who retains control of the actor’s likeness, their performance and ultimately, of the data.

Actor and director Andy Serkis raised the alert at IBC2019. He said digital scans of an actor’s performance could be captured and then repurposed for other movies or platforms.

“When your performance is captured as data it can be manipulated, reworked or sampled, much like the music industry samples vocals and beats. If we can do that then where does the intellectual property lie? Who owns authorship of the performance? Where are the boundaries?”

He urged acting unions Equity and SAG to examine the issue. “If an actor’s performance from one movie is re-used in another there should be remuneration for that actor, no question. It is their performance and no matter what platform it ends up on they should be paid for it.”

Far from scaremongering, such incidents may already be happening. The computer games industry is currently the largest employer of performance capture with up to 500-character roles being created for a single game. Actors are typically paid £400 a day for performing body movements in a mocap suit, perhaps more if their facial performance is recorded, while voice work can command in excess of £1000 a day.

There are reports that actors who have had their performance captured for the game they were contracted for, have had elements of their performance reused without credit (or financial reward) in other titles.

Tracking use of an original data captured performance is tricky given that any character or creature you can imagine can be animated using the artist’s work as a base.

This is doubly difficult when more than one actor’s performance is blended to create a character. The Serkis-directed Mowgli, for instance, featured CG creatures composed of body movements, facial and vocal performances captured from different actors.

“We can very accurately capture a body, face and vocal performance and bottle that information,” explains Matt Brown, the CEO of Serkis’ London studio Imaginarium. “Being co-owned by an actor, we take an ethical approach to what happens to that data. We would be very uncomfortable if a producer or studio wanted to use that data for a principal character or even a background character in another piece.”

Image right protection
One avenue worth exploring is whether studios should share some of the data about a performance with the actor so that they have a better record of what they’d delivered on a particular day. Blockchain might be used to track the provenance of information.

“There are complications with this,” Brown suggests. “For example, the actor may have a certain hairstyle, weight or be wearing a costume on the day of the scan so the legal protection about what is name and likeness and how that differs or is used down the line is not straightforward.”

He stresses: “At Imaginarium, we make it clear to actors from the outset how their performance data is being used and we’ve not had an instance where we’ve been asked to provide data at a later date for something that wasn’t contracted.”

Contract and IP
Conventionally, when an actor contracts with a studio they will assign rights to their performance in that production to the studio. Typically, that would also licence the producer to use the actor’s likeness in related uses, such as marketing materials, or video games.

Similarly, a digital avatar will be owned by the commissioners of the work who will buy out the actor’s performance for that role and ultimately own the IP.

However, in UK law there is no such thing as an ‘image right’ or ‘personality right’ because there is no legal process in the UK which protects the Intellectual Property Rights that identify an image or personality.

The only way in which a pure image right can be protected in the UK is under the Law of Passing-Off.

“If there is technology that allows you to copy and mimic how an actor moves and you are able to create a new character based on those movements which the original actor claims they did not consent to then the law has yet to be tested,” Andrew Bravin, associate lawyer at Sheridans

“This essentially comes down to whether there has been a breach of confidence, reputation or ‘goodwill’,” explains Andrew Bravin, associate in the digital media, advertising and technology group at Soho-based lawyers Sheridans. “A breach of goodwill means the image or name has been misrepresented, or suffered reputational damage, by falsely showing an individual to have endorsed a product or service.”

The first successful case where goodwill was found to have been misused was brought by former F1 driver Eddie Irvine against Talksport in 2003.

In the era of deep fakes, though, technology can bootleg a celebrity, create counterfeit news and unauthorised artificial reality that is nearly indiscernible to the untrained eye.

In law, this is a widening grey area. “If there is technology that allows you to copy and mimic how an actor moves and you are able to create a new character based on those movements which the original actor claims they did not consent to then the law has yet to be tested,” says Bravin.

Actors like Serkis have already had to fight to have their motion-captured work recognised as performance its own right.

“Once you have captured an actor volumetrically you have each element of them in isolation and you can start to control it in different ways,” says Andrew Shulkind, an LA-based director of photography involved in commercials. “If they miss a mark, for example, you could work their foot into just the position you need. There are AI tools which can manipulate the ‘character’ independently of the actual performer. At that point, does the actor still have agency?”

Digital necromancy, digital cryogenics
It is increasingly common for actors to be scanned during production, principally as an aid to VFX (for de-aging or stunt doubles). The stars of BBC series Good Omens also received full photo scans, showing that the process has entered TV.

Volumetric scans also provide insurance to the production in the case of an actor’s passing before the shoot is complete. Most cases of an actor’s likeness being used posthumously are not contentious, at least in so far as the person’s estate has offered consent.

“I think that it is ethical as long as we can bring the digital actor to the same level of talent and if they are used in roles that follow the path of their career,” says VFX artist Arturo Morales, who worked on Paul Walker’s posthumous appearance in Fast and Furious 7.

Audrey Hepburn Specsavers ad

Audrey Hepburn: Resurrected in popular Specsavers UK advert (2015)

“Whether a certain project is ethical or not depends mainly on the purpose of using the ‘face’ of the dead actor,” he adds. “Legally, when an actor dies, the rights of their [image/name/brand] are controlled through their estate, which is often managed by family members. This can mean that different people have contradictory ideas about what is and what isn’t appropriate.”

The recreation of Peter Cushing two decades after his death in Rogue One was carried out with the full approval of the actor’s estate, although it is unknown what kind of financial remuneration was offered, or even if Lucasfilm and Disney needed Cushing’s property approval.

“After all, the appearance of Tarkin in the Star Wars films is the intellectual property of Disney and presumably, they can do whatever they want with that material,” Morales notes. “As this VFX method becomes more and more popular, it will certainly be something every famous actor will start thinking about. In the same way, they leave a will, they will need to decide how their image will be used after they are gone.”

Robin Williams had already spotted this trend and made a clear stipulation in his will to prevent his image from being used for any purpose for 25-years after his death.

Oo-ee-oo you look just like Buddy Holly
Famously protective pop artist Prince called the holography of dead stars ‘demonic’. Last year, Roy Orbison and Buddy Holly completed their hologram UK tour.

Re-animation doesn’t require digital scans of course. Walker’s brother stood in for scenes to finish Fast and Furious 7 with previously filmed close-ups of Walker’s face composited over the top. Still, photos and archive footage combined with body doubles were used to bring Audrey Hepburn and Gene Kelly back to life for TV ads, both with the consent of the deceased’s estate. James Dean’s appearance will be created using a similar method.

“If you have data or photogrammetry then conceivably you can get another actor in to mimic or puppeteer a dead actor quite accurately,” Brown says.

While the ability to believably simulate the life and soul of an actor’s eyes has yet to be solved in computer imagery, the use of de-ageing techniques has been used effectively in movies like The Irishman and TV shows like HBO’s The Righteous Gemstones, where John Goodman was de-aged 30 years for one episode. In this instance, the performance in Goodman’s eyes were largely left untouched by the VFX team handling his facial de-aging.

More and more A-listers are reportedly selling their image rights for films which will be made when they’re dead. Other may be inclined to bank 3D scans of themselves in their prime as a form of digital cryogenics.

“When you add it all together [dead people] can begin to have new consciousness,” Framestore chief creative officer Mike McGee told The Telegraph last year.

“It’s only a small step to interactive conversations with holographic versions of dead celebrities or historical figures.”

A question of ethics
The advance of performance capture and VFX techniques can be liberating for much of the acting community. In theory, they would be cast on talent alone, rather than defined by how they look.

“Performance capture is the end of typecasting,” declared Serkis. “With it, anyone should be able to play anything.”

Serkis champions the idea that performance capture be used to promote greater diversity within the industry but is also wise to the political sensitivities this throws up. What would the reaction be if a man performance captured the role of a female?

“There should be great opportunities for disabled actors to play able-bodied characters,” he said. “It would be possible for an actor of colour to play Abraham Lincoln and for me, as a middle-class white man to play Martin Luther King.”

“The question is whether that is ethically right.”