Attack of the Holograms

"When Maria Callas appeared on stage . . . on Sunday night, she looked a little pale, a little spectral."  That is how Anthony Tommasin (writing in the New York Times) described witnessing a hologram performance of the diva at Lincoln Center.  The real Callas has been dead since 1977.  It used to be that the only hologram we had to contend with was Princess Leia seeking help from Obi-Wan Kenobi.  There is now a new phenomena to utilize this technology to create concert performances of deceased stars.  To date there have been hologram performances from Tupac Shakur, Michael Jackson, Ronnie James Dio and now Maria Callas.  Mojo reports that a hologram Roy Orbison is about to tour the United Kingdom and that the Frank Zappa estate is about to send Frank out on tour with some of his old band members performing live.

 

            I find this really creepy for the most part.  It is interesting that Tommasin does not completely dismiss the Callas experience stating "it was amazing yet also absurd, strangely captivating, yet also gimmicky and ridiculous," going on to state that opera fans tend to dwell in the past thus indicating that this sort of performance might appeal to them more than other audiences.  My worry is that as our contemporary heroes age and die off will the hologram industry rise to fill the void.  Could Paul McCartney be preparing a hologram version of himself to send out on tour?   - - - Probably.  Will the hologram develop artificial intelligence (wait that's another blog).

            All of this made me begin to wonder about the rights that artists traditionally give up when signing record contracts.  Usually there is some limited assignment of name, image and likeness rights and the rights to control video recordings made during the term but could this be considered to be a grant of rights that would encompass holographic images of the artist long after the term (and the artist) expires?  Obviously the artists who have leverage don't need to be concerned with these boilerplate clauses necessarily but this is something that is certainly going to be on my radar going forward.

Sir Paul Sues Sony/ATV

Fake news.  That is my characterization of most news stories that report on entertainment and copyright litigation.  Witness the reporting of Paul McCartney's recent lawsuit against music publisher Sony/ATV.  It was reported that McCartney had sued Sony/ATV to recover the copyrights to his Beatles era compensations.

            Paul McCartney did not need to sue anyone to recover his U.S. copyrights.  Section 304(c) of the Copyright Act gives McCartney the right to terminate the assignment of these copyrights after (a mere) 56 years (these songs were all created prior to January 1, 1978; there is a different section that applies to post 1978 copyrights).

            The story of how Sony/ATV ended up with these copyrights to most of the Lennon/McCartney catalog has been detailed elsewhere. Beginning in October 2008, McCartney began serving termination notices on Sony/ATV and according to the complaint, the terminations will begin vesting in October 2018.  Sony has acknowledged that these terminations are valid.  The purpose of McCartney's lawsuit is to seek a declaratory judgment that not only are the terminations valid but that the terminations themselves do not give rise to a breach of contract claim against McCartney by the publisher.

            This may seem somewhat odd since it is well settled that the Copyright Act gives authors the right to terminate assignments of copyright despite any prior agreement to the contrary.  The problem is that this is U.S. law.  There is no corresponding British law.  Last year, when the member of the band Duran Duran attempted to terminate the U.S. assignment of copyright to their works, Sony's affiliate in the United Kingdom sued the band for breach of contract.  The court in that case ruled in favor of Sony/ATV.  This sounds crazy but the court found that Duran Duran did not present expert evidence of U.S. law so the British court did not take U.S. law into consideration.  It seems as if the Duran Duran decision should ultimately be remedied but if it is not, this does put songwriters like McCartney in an untenable position.  How can they exercise their statutory rights in one country only to be sued for breach of contract in another country?  For this reason, McCartney may be taking a stand for similarly situated creators ( i.e. British songwriters who signed UK publishing deals and had success in America) asking the U.S. court to rule that the exercise of his termination rights does not represent a breach of his publishing agreement and/or that the agreements cannot be enforced against him to the extent that they interfere with the exercise of his termination rights.  The unspoken third claim of this declaratory judgment is most likely:  take that Michael Jackson.

            It will be interesting to see how this plays out

Random Thoughts on Celebrity Estate Planning

                I have been thinking about death lately; not in any kind of a morbid way but simply because I have had a few friends pass away unexpectedly and because I have been helping clients deal with their loved one's estates.

                A number of things that I had thought about only theoretically have become really important.  For example, the whole concept of managing so‑called digital assets (which I wrote about here : http://tripaldredgelaw.blogspot.com/2012/06/digital-estate-planning.html)  took on new meaning in a case I recently looked into.  Without going into any of the details, I see how an awful lot of angst could have been spared if the decedent had left some instructions as to how he wanted his digital afterlife to be handled.

                I've also been thinking about Michael Jackson and Whitney Houston.  There is a really sad article in the new Vanity Fair which details how Michael Jackson's family has been fighting over his estate.  The key thing that I take away from both Michael Jackson's and Whitney Houston's estate planning is that while both of them are to be commended for providing trusts and guardianships for their minor children, neither appeared to have undertaken any significant tax planning which could have saved their estates millions of dollars.  This is not a reflection on their advisors because clearly these were not the most stable clients in the world but still the lack of any type of sophisticated planning for estates of this nature is kind of shocking. 

                Finally, I have to say how impressed I am with Adam Yauch's will.  The late Beastie Boy left a will which included the phrase "notwithstanding anything to the contrary, in no event may my image or name or any music or any artistic property created by me be used for advertising purposes".  Thus although Yauch amply provided for his surviving wife and daughter , he made his wish clear that to the extent he could control it, he did not want the Beastie Boys' music to be used to peddle merchandise.  Such dead hand control raises many questions, especially as to enforceability but the intent is devastatingly clear.

                I am of two minds concerning the use of music in commercials, I see positives and negatives (and ultimately my opinion really doesn't matter) but I have to admire Mr. Yauch's willingness to take a stand on something he obviously believed in.  It's a good example of how an artist can use estate planning to preserve their principles as well as his or her  assets.