When legendary Entertainment lawyer Bert Fields recently addressed the Harvard Law Association at the Beverly Hills Bar, he, of course, brought down the house, delighting his audience with his comments on an array of topics. His views on a particular subject resonated for the editors of this blog, because it has arisen in posts before (see here and here): Are there legal rights that need protecting for deceased entertainers? Fields was kind enough to answer a few questions posed by email by Biederman Blog Editorial Board member Jessica Villar regarding this topic:
Question—When you spoke recently to the Beverly Hills Bar, you mentioned new kinds of entertainers’ rights, particularly as these might apply to their post-mortem performances as what you called synthespians. Were you specifically addressing the advent of holographic characters performing entertainers’ known works in shows? Or are there other technologies you had in mind?
Answer—I was talking about buying the rights of living performers to use their computer generated images to make new movies or perform in new concerts when they’re too old to do so or after their deaths. Synthespians are a stage later. They are computer generated actors and performers who will appear human, but are not. They never die and when the audience tires of them, we create new ones.
Q.—Are synthespians’ rights a big and new potential area of Entertainment Law or are they already covered, say, by state statutes, like California’s, on the rights of publicity? Or by copyright? Do you envision a need for synthespian legislation or are there court decisions that you think might be readily applicable?
A.—Buying late in life or even post-mortem rights of real performers is primarily a matter of contract. But legislation may be needed to protect the rights in some jurisdictions. Synthespians are artificial creations and, while the Actors Guild will scream, they may turn out to be unstoppable.
Q.—Who might you envision as future practitioners’ synthespian clients? Will Entertainment lawyers be representing just them or their estates? And would synthespians be protected fully in your view—or what might the law do about future characters partially based on an entertainer (call it the Laura Croft effect)?
A.—Lawyers will be needed to negotiate and draw the contracts for late in life or post-mortem rights of real performers and to litigate protection issues. I’m sure lawyers will be in copyright battles over synthespians.
Q.—Besides synthespian appearances in shows or performances, how do you see Entertainment Law dealing with entertainers’ post-mortem rights when they become video game or online characters? The courts seem divided as to how to treat living artists and athletes in video games, where might Entertainment Law go with synthespians’ rights?
A.—Again, I’m talking about contracting for the post-mortem rights, not just taking them. Statutes in some states (e.g., California) give post-mortem effect to the right of publicity. But other states may not.
Fields is a partner at Greenberg Glusker Fields Claman & Machtinger LLP. He is one of the nation’s leading entertainment attorneys. He represents the industry’s top performers, directors, writers, producers, studios, talent agencies, book publishers and record companies. Clients have included DreamWorks, MGM, United Artists, The Weinstein Company, Toho, James Cameron, Tom Cruise, Warren Beatty, Dustin Hoffman, Mike Nichols, Jeffrey Katzenberg, David Geffen, Jerry Bruckheimer, Joel Silver, The Beatles, Madonna, Sony Music and many others. He also has represented such major authors as Mario Puzo, James Clavell, Tom Clancy, Clive Cussler and Richard Bach. Fields has represented virtually every major Hollywood studio and talent agency, and he has tried many of the landmark cases in the entertainment and communications industries over the past 30 years. He teaches the course on entertainment law at Stanford Law School, lectures annually at Harvard Law School and has lectured on Shakespeare at various venues, including the Smithsonian Institute in Washington D.C. He earned his LLB, magna cum laude, at Harvard Law School, where he was editor of the Harvard Law Review. He received his bachelor’s from the University of California at Los Angeles.