Image Attributed to Flickr User cliff1066

Apparently the conspiracy theories are true: Tupac is alive and well. At least that is what a crowd of nearly 100,000 music fans believed after a 3-D hologram of Tupac Shakur gave a public performance at the Coachella Music Festival in California this past weekend. Besides evoking images of the Star Trek universe, Coachella’s holographic performance is rife with intellectual property issues, especially with respect to copyright and the right of publicity.

The epic performance resulted from the collaboration of Digital Domain Productions and AV Concepts. Digital Domain Productions, a Hollywood CGI company founded by James Cameron, created the Tupac hologram. AV Concepts, a full service audio-visual and staging support company, produced hologram Tupac’s performance. While staging the Tupac hologram was no small feat, the production boiled down to a multi-layered 2-D rendering of Tupac projected onto a 30×13 foot Mylar screen. The most astounding part of Tupac’s performance was best conveyed by Nick Smith, president of AV Concepts, when he said, “You can take their likenesses and voice and . . . take people that haven’t done concerts before or perform music they haven’t sung and digitally recreate it.” This means that a hologram production company can take a hologram of Tupac and make him rap a Kanye West song, or even an entirely new song. Given that power, the importance of copyright and the right of publicity are paramount in controlling how holograms are used.

Copyright laws provide copyright owners with the exclusive right over public performance, which gives the owner discretion over who can perform their music in public. The public performance rights to songs performed in concert are actually licensed out from the composers and record companies that comprise the American Society of Composers, Authors and Publishers (ASCAP). It seems likely that whoever owns the copyright in “Hail Mary” and “2 of Amerikaz Most Wanted” licensed out the songs to AV Concepts to create the new Tupac performance. In this case, AV Concepts likely owns the rights to the hologram, but paid the record company to use Tupac’s songs. Since the hologram was based on a 2-D image, AV Concepts likely had to pay a copyright holder to use the image of the deceased rapper. However, a question remains about who owns the holographic performance. Moreover, who would own the rights to a public performance of a hologram Tupac rapping an entirely new song?

The right of publicity is also implicated in the recent Coachella performance. The right of publicity generally gives a famous individual the right to control the commercial use of her name, image, likeness, or any other unquestionable aspects of her identity. Right of publicity laws vary from state to state, but usually provide protection through death for a set period of time. Tupac’s likeness is fiercely guarded by his mother, Afeni Shakur, who created Amaru Entertainment to handle her son’s image. AV Concepts got permission from Afeni Shakur to use Tupac’s likeness for the hologram. However, it will be interesting to see whether companies in the future will seek to get permission to use holographic images of celebrities. Courts have held that the use of impersonators and images that evoke the likeness of celebrities violate their right of publicity when used for commercial purposes. Given these rulings, it seems likely that any hologram production company seeking to make a hologram of a famous person would have to get permission first.

As holographic technology progresses, it won’t be long before other deceased artists start performing again or living musicians decide to a host concert in one location and broadcast holograms of the performance all over the world. Who wouldn’t want to see Nirvana perform again with a hologram Kurt Cobain front and center, or take in the experience of Whitney Houston hitting a high note in all its glory? And imagine how quickly a fully rendered Beatles hologram tour would sell out. It just might be a brave new world for the music industry and for intellectual property laws.

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