Background
Even if you think Tupac’s hologram concert at Coachella was odd, creepy, awesome, or something else, it was a lawyer’s dream. I know, us lawyers are sort of strange that way. Really, there are legal implications related to Tupac’s hologram concert. Here are three: the Right of Publicity; Copyright; and Trademark.
Discussion
The simple, non-legal definition of the Right of Publicity is: Every person controls his name, image, persona and no one can use it without his permission. Each state interprets this right differently, because there is no federal law, so the scopes of one’s rights vary from state to state. In this case Dr. Dre and Snoop Dogg (promoters of Coachella) obtained the right to use Tupac’s likeness. However, if Tupac lived in a state when he died that does not recognize a post-death Right of Publicity (only 19 states recognize this post-death right), Coachella might not have had to get permission. I envision a situation in the future where someone wants to use a deceased people’s name or likeness in a state that do not recognize the post-death Right of Publicity, and the deceased person’s estate will have no right to prevent it.
Trademark rights are also implicated in Tupac’s appearance. Even if Tupac’s name was not a registered trademark, he likely had common-law rights. Coachella’s use of Tupac implies he supported the concert and agreed to be affiliated with it. If he did not, Tupac’s estate could assert state or federal trademark violation claims, including dilution, false association or false endorsement, and state laws against deceptive sales practices. Also, if Tupac had assigned his trademark to his music label or anyone else, Coachella would have had to get licensing rights from them. Unrelated to Tupac, but also a Trademark issue, is whether showing any logos on clothes Tupac was wearing, or even company logos in the background while he was performing, violated the trademarks of those companies. Did those companies agree to be associated with Tupac at Coachella? If Tupac wore the clothes during his lifetime, is it okay to show them in the hologram? What if the company whose logo was shown had previously sponsored a Tupac concert tour?
The Copyright issues are generally straight forward. There are clearly no exception to Coachella’s use of Tupac’s music, therefore Coachella had to license the music. A more important question is whether, if Tupac performed a song while alive that was written by another, Coachella would have to acquire license rights from the copyright holder of those songs?
Why This Matters
To create a hologram, the artist’s prior performances, concerts and appearances are used. In many of these cases, the artist may have actually licensed or assigned his Right of Publicity, Copyright or Trademark rights to concert promoters, producers, record companies, etc . . . In that case, not only would the hologram producer have to obtain intellectual property rights from the deceased person, but also from anybody else who might have prior rights. Both the deceased performer’s estate and other rights holders must agree to the hologram.
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