Plenty of us rushed out to see the latest “Star Wars” movie, “Rogue One,” this weekend. Which means many of us were a bit taken aback at the friendly face of Grand Moff Tarkin wielding his harsh power over Imperial troops once again—after all, Peter Cushing, the actor who played Tarkin in “A New Hope,” died in 1994.
Though Disney isn’t saying much about the deal, it appears to be legally above board. But though this is all going down a long time ago in a galaxy far, far away, it could be representative of future contracts actors will face.
Don’t worry, those who haven’t dipped out to see “Rogue One” yet, we’ll be avoiding spoilers. Most of what you need to know is baked into the premise of “Rogue One,” which is a prequel about the Rebel Alliance’s quest to steal the plans for the Death Star (events which are alluded to in 1977’s “A New Hope”). The role of Grand Moff Tarkin, who was first introduced as the Death Star Commander in Episode IV, pops up as one of the many ways the filmmakers wanted to establish continuity.
Only this time it’s not just Peter Cushing. Rather it’s actor Guy Henry performing the role during shooting, then being digitally-altered in post-production to look like Cushing. The result is the sort of CGI that’s noticeable, but not necessarily distracting (much like old-school, Hollywood glamour lighting).
Traditionally (if one can say such a thing about newfangled CGI) this kind of post-mortem digital-resurrection would be possible in only a handful of ways: Either the estate gives permission, the actor has some sort of clause in their will, or the contract for right of publicity was broad enough they could justify using it in a later movie in the same franchise.
Legally, Disney seems to have it all above board. When Cushing died he left his estate to his former secretary, Joyce Boughton. She has reached some sort of deal with Lucasfilm and Disney that both parties are currently not sharing (one representative for Lucasfilm said they won’t be discussing the nuts and bolts until the new year to let the film breathe a bit), but is apparently on the record as having a deal reached. Which makes sense since it’s a (very) high profile movie, and Disney and Lucasfilm would want everything to be above board.
This could also be the beginning of the end for contracts like this. After all, as Vulture points out, this is increasingly becoming commonplace:
Meanwhile, digital plastic surgery and postproduction enhancement have become not only commonplace but expected, going so far, at least in one instance, as replacing an actor’s face with another’s after the performance was already in the can.
…In California, that right of publicity — the legal term for the the right to prevent others from profiting off your image without your consent — lasts 70 years after an actor’s death, and the state could choose to enforce that even if Cushing resided in a state or country with a shorter postmortem right of publicity, or, as in the case of Cushing’s United Kingdom, none at all. Because of this situation, permission is almost always obtained before such a use of likeness is attempted, which is why there’s been very little litigation on the issue so far. An actor’s contract also usually defines the extent and nature of his or her rights as far as whether the copyright holder of their performance can use their likeness in a sequel, or a video game, or an advertisement; according to [Tyler Ochoa, a professor at the Santa Clara University School of Law], the rights of publicity tend to be cumulative, meaning an actor would need to give permission for further use of footage in addition to permission from the copyright holder. (A moot point for Rogue One, as Lucasfilm held the copyright to Cushing’s old performance.)
There is a gray area: Copyright is federal law, while rights of publicity are state law, and federal law is supreme to state. Theoretically, a challenge could be made to an actor’s rights of publicity by a copyright holder, or over a person who could be said to exist in the public domain, as has been happening with Marilyn Monroe. “But smart lawyers are going to handle this with contracts,” Ochoa said. “They’re going to continue to get permission wherever they can, and if they can’t get permission, they’ll avoid it.”
Though “Rogue One” marks one of the “most complex and costly CGI re-creations ever” the actual argument over likenesses in films goes back a ways. In fact, “Back to the Future II” of all movies was a major precursor for the issue after Crispin Glover wanted nothing to do with the sequel, laying the groundwork for Screen Actors Guild establishing rules about what studios can do with an actor’s likeness. Years later, high-profile figures Gwen Stefani, Vanna White, or Michael “Tony” Davis would bring a case against a video game manufacturers for using their likeness without proper compensation.
The exact line, as much of law, remains murky. But as modern talent contracts move forward, no doubt more and more lawyers are pushing for clauses that allow for digital recreation, possibly. As we see more and more franchises, made up of wider and wider swaths of people, Disney may be more actively working to maintain continuity, even between now and audiences far, far away.