The ethics of digitally resurrecting actors

In the wake of Peter Cushing's digital resurrection in Star Wars: Rogue One, debate is once again raging around the ethics of re-purposing the images of long dead actors. In a previous article we examined the journey into the uncanny valley Hollywood has taken over the past 15 years as computer generated images have become more photo-realistic. But how are we to deal with the murky legal and ethical waters surrounding this discomforting territory?

In a recent interview with the New York Times, John Knoll, chief creative officer at Industrial Light & Magic and visual effects supervisor on Rogue One, addressed the concerns being raised in the light of this watershed moment in computer generated acting. Noting the "slippery slope argument," that this technique could open the door to actors from all eras being reincarnated digitally across a variety of different films Knoll responded,

"I don't imagine that happening. This was done for very solid and defendable story reasons. This is a character that is very important to telling this kind of story... It is extremely labor-intensive and expensive to do. I don't imagine anybody engaging in this kind of thing in a casual manner."

Knoll's comments are certainly sincere, but they strongly miss the point that, while these techniques may be expensive and labor-intensive today, they most surely will become cheaper and easier in the near future.

It was reported that the process in Rogue One was undertaken with the full approval of Peter Cushing's family and estate, although it is unknown what kind of financial return was offered to them, or in fact whether Lucasfilm and Disney even needed the permission of Cushing's estate in the first place. After all, the character and appearance of Tarkin in the Star Wars films is intellectual property owned by Disney and presumably they can do whatever they want with that material.

One wonders whether from this moment forward Hollywood actor contracts will need to incorporate clauses determining who owns the image of characters clarifying how they can be digitally repurposed in future film instalments. Could Marvel make more Iron Man films with Robert Downey Jr digitally inserted into the role if the actor chose to step away from the franchise?

Over the last 30 years we have seen a barrage of material in film and advertising that has pushed the limits of how technology has reincarnated actors for uses that are often hard to imagine the individuals willingly participating in.

The 1990s treated us to a series of beer ads featuring John Wayne returning from the dead to sell us on the wonders of Coors Light. In this instance the company received permission from Wayne's estate to re-purpose his likeness alongside what was described as a "significant cash donation" to the John Wayne Cancer Institute.

More recently, Audrey Hepburn came back from the dead to sell us chocolate bars in a supremely creepy ad that was authorized, for a fee, by Hepburn's sons, who control her estate. In a press release accompanying the ad, her sons stated that their mother would be "proud" of her presence in the commercial and added she loved chocolate and it "lifted her spirit."

Legally, when an actor passes away the rights to their image is controlled through their estate, which is often managed by children and family. This doesn't always lead to acrimonious posthumous appearances though, as different family members can have conflicting ideas on what is and isn't appropriate. After Fred Astaire's likeness was re-purposed dancing with a vacuum cleaner in a commercial his daughter expressed her sadness at what she described as his wonderful career being "sold to the devil." In this instance, it was Astaire's widow who controlled, and sold, his likeness for use in the commercial.

In the wake of Rogue One's technical achievements, one has to question whether it's ethical to use someone's likeness without their express permission? Certainly from this point forward it is likely to become something that is very clearly outlined in actor's wills. Back in 2015, it was revealed that Robin Williams had cleverly foreseen this growing technological trend and had a clear stipulation barring his likeness being used for any purpose for 25 years following his death. The issue was decided by Williams himself and not left to future generations to decide.

We may be able to envision a clearer path moving forward by incorporating tangible and direct clauses into future contracts and wills, but how do we approach a whole century of famous figures who never got a chance to offer their thoughts on whether they could be made to shill products after their deaths?

In the 1990s, Robert Zemeckis incorporated several major historical figures into his film Forrest Gump without any permission other than paying for the use of archival footage. A few years later, Zemeckis went even further in his film Contact, digitally incorporating footage of then president Bill Clinton into a scene. The President expressed his displeasure at being digitally inserted into the film without his permission, but Zemeckis argued the use as legally allowable under the assertion that the president was a public figure.

Digital technology is clearly reaching a point where photo-realistic depictions are possible and we need to ask ourselves what the entertainment of the future will look like? Are we comfortable using the visages of dead celebrities as puppets in our future movies and commercials? Maybe we are.

At what point is all this fair game? Would it be ok to create digital likenesses of famous figures and insert them into pornographic films? Could we use early 20th century celebrities like Charlie Chaplin for political causes, or would it be just as tasteless to put Chaplin in the next Adam Sandler film?