There's no denying that the "hologram" of Tupac Shakur that debuted at Coachella this year is provocative. Some see the visual effect as a celebration of a well-regarded rapper's legacy. Others see the spectacle as a disturbing example of the uncanny valley theory on a particularly grand scale.
No matter what the opinion, "Hologram Tupac" is a testament to how far special effects have come in the last couple of decades. But this isn't the first time performers cleverly conjured up a deceased musician's image to attract attention - or make a profit. It's just that this particular instance wasn't nefarious or nonsensical. Shakur worked with Dr. Dre and Snoop Dogg when he was alive, so it wasn't too much of a stretch that he would perform alongside them.
But other artists scheming to bring popular musicians back from the dead through super-cool optical illusions may want to examine certain legal considerations closely.
Yvette Joy Liebesman, an assistant professor at St. Louis University Law School, told RFT Music in a telephone interview that there are a few issues that may haunt an artist that uses a dead musican's image or music without permission. The first consideration is the right of publicity, which Liebesman describes as using "somebody else's image to sell a person's stuff."
"So, if you're putting out an album like Natalie Cole doing a duet with her father who's been deceased for many years... obviously she has the rights somehow through her mother or her father," Liebesman says. "Obviously it wasn't hard for her to get the permission to do this. Most of us aren't that lucky if we want to do something like that."
The law varies by state when it comes to granting the right of publicity to deceased individuals. Liebesman says in New Yorkers have to be alive to exercise a right to publicity. Estates of deceased individuals can claim such a right in California, which is home to oodles of celebrities.
The next thing to consider is the right of trademark. That right, Liebesman says, shields against a situation where a deceased individual seems to be giving support to something out-of-character. A comical example of this would occur if Hologram Tupac appeared at a Soulja Boy concert and bragged about how great "Turn My Swag On" is compared to his music. "Here you'd need permission because there could be a claim of false sponsorship or false endorsement, which is separate from right of publicity," Liebesman says. "They could claim 'well, you're using this and you're somehow linking Tupac with you as if he endorsed this or as if he wanted this.'"
The final consideration is the right of copyright, which in this situation would probably deal with performing recorded music in a public setting.
"Unless they have permission from the rights owner, which goes 70 years after the death of the person who created it, then they need permission for copyright unless it somehow fall under the 'fair use' defense - they're only using a little of it or they're transforming it," Liebesman says. "Which doesn't seem like that's the case here."
To be clear: There was no conflict in this particular situation. Afeni Shakur gave permission to Dr. Dre and Snoop Dogg to use her son's image. The two even donated money to the Tupac Amaru Shakur Foundation as a 'thank you' gesture for the okay.
But others who want to emulate the Coachella performance might want to get an attorney, especially if they want to avoid getting hit with big, fat lawsuit.
"Because if you're advertising out there 'yes, watch me sing a duet with Tupac's hologram,' now you're using his fame to get people to come to the concert," Liebesman says. "And that's right of publicity and false sponsorship and false endorsement."
Black Lips, you're on notice.
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