Tupac and Nate Dogg — rappers who have been deceased since 1996 and 2011, respectively — appeared last week on stage, albeit as holograms that allowed Dr. Dre and Snoop Dogg to perform their noteworthy songs “California Love” and “The Next Episode” without missing a beat. The West Coast performance demonstrated the identical hologram technology that allowed Mariah Carey to perform a Christmas concert in five European cities simultaneously. This new technology raises interesting legal issues about use of the likeness of a dead celebrity.A key issue concerns Tupac’s “right of publicity,” which prevents others from using, without permission, the name or likeness of a person for commercial gain. When alive, that right vests in the individual; the issue gets more complicated after an individual’s death.In some states, the right of publicity automatically passes to heirs or passes via a will or other testamentary document; this is the case in Indiana or California. In New York, however, the right of publicity ends upon an individual’s death. Courts have determined that the state where the person domiciled at time of death provides the governing law. More information on post-mortem rights of publicity is contained in this article.
The Wall Street Journal reports that representatives for both Dr. Dre and Snoop Dogg are planning a tour with holographic Tupac and it could launch a trend in such musical tours. The technology, hypothetically, for example, could let Paul McCartney tour anew with his Beatles bandmates, now deceased. But whether such projects get off the ground will depend on who owns the right of publicity of the dead musicians and promoters’ ability to acquire such rights.