What do Star Wars actress Carrie Fisher, musician Prince and writer F. Scott Fitzgerald have in common? Not only are they world-renowned icons in film, music and literature, they are also immortal. Carrie Fisher died in 2016 but appeared in “Star Wars: The Rise of Skywalker” in 2019. Prince also died in 2016 and released the album “Welcome 2 America” in 2021 with a whole 12 new songs. F. Scott Fitzgeralds life ended back in 1940, nevertheless he made headlines in 2017 with his new novel “I’d Die For You. And Other Lost Stories”. The hype surrounding this “resurrection” of dead artists is, however, controversial. Some people’s hearts go out to them, while others go to the barricades. For example, musician Anderson.Paak, who not only speaks negatively about the posthumous exploitation of these artists, but now also wears his statement on his skin. Largely emblazoned on his arm: “When I’m gone, please don’t release any posthumous albums or songs with my name attached. Those were just demos and never intended to be heard by the public.”
THE COMPLEXITY OF COPYRIGHT LAW
Before we can even discuss right and wrong, we need to clarify the legal framework that applies to posthumous property. If the artist leaves a will that contains specific instructions for action, this can be followed exactly. However, this is only the ideal case. The best-known negative example of this is Franz Kafka, who stipulated in his will that his unpublished works should be burned by his friend Max Brod. The latter did not comply with this wish, which led to the novel “The Trial” being published a year after Kafka’s death. However, this only triggered a dispute over ownership decades later, when Brod himself had already died.
Things get really complicated when there are no records of what the artist intended for unpublished works after his or her death. In this case, the copyright passes to the next of kin of the deceased, but only for a limited period of 50 to 70 years. Until then, the heirs have the sole right to determine the publication, modification or reproduction of a work. However, this is only a small and general part of the legal framework. Laws vary from country to country, of course, and are further divided into categories. Copyright for musical works, for example, is treated differently than for literary works. What is immediately noticeable is the great difference in the scope of the legal regulations between Germany and the USA. While musical copyright is only lightly delineated in German law, sections 114 and 115 of the “Copyright Law of the United States” extend over 60 pages. These meticulously elaborated regulations are, however, understandable when working with the estates of billionaire celebrities.
A special situation is the reconstruction of a deceased person with CGI or as a hologram, which is also called “digital necromacy”. Here, a technology plays an important role that was only developed in the course of the last few years and is now being used more and more often. Whether this reconstruction is permitted is determined by the will or the contract with publication partners of the deceased stars, such as film studios or labels. The deceased are also called “delebs”, which is derived from the term “dead celebrities”. For example, actor Robin Williams, who died in 2014, stipulated in his will that no performances or voice recordings of him may be used for twenty-five years after his death.
However, filmmakers can circumvent these legal regulations if they own the copyright to the characters appearing in their productions. These exist independently of the actors involved, giving producers the right to recreate the characters in the image of the stars. An example of this is the 1985 film “Back to the Future”, in which George McFly was played by Crispin Glover. However, the actor demanded such a high fee for the sequel that a look-alike was used instead, who became Crispin Glover entirely with facial prosthetics.
Since this is a comparatively new phenomenon, not all the basic conditions have been clarified yet. If celebrities today are expected to state their opinion on reconstruction in their will or contract, one question still remains: what about deceased celebrities who had no opportunity to state their opinion because the development of such a technique was not foreseeable?
A DOUBLE-EDGED SWORD
When it comes to how posthumous art is reacted to, two camps can be identified, as in any moral debate. One side enjoys being able to see, hear or read the works of their beloved artist even after death. It’s like a band-aid over an aching wound. Fans can share in the thoughts and feelings that the artist experienced before death. Two years after his death, Mac Miller‘s album “Circles” moved the whole world and made it into several charts. This may be a way of overcoming the fundamental human fear of death by raising the hope of being remembered even after death.
However, the opponents of posthumous art seem to be much louder. They often include relatives, colleagues or even dissatisfied fans. Other artists in particular are critical of the publication of new works in the name of a dead person. It is often pointed out that most artists produce much more than they publish. This is not because there is no demand, but because not every work is meant for the ears of the public. Whether intimate thoughts written down to free the soul or entire works that did not have the desired quality.
There are several reasons for artists not to publish everything they produce. There is a risk of damaging an artist’s reputation by using their work for purposes that are not in line with their image. An example of this is the reconstruction of Bruce Lee, who died in 1973, for promotional purposes of Johnnie Walker Blue label whiskey in 2013. The fact that the actor did not drink alcohol during his lifetime was completely ignored.
Despite complicated copyrights and moral dilemmas, there is a clear increase in posthumous art. Not to be disregarded is the amount of revenue it generates. This market was estimated to be worth $2.25 billion in 2019 and is now very likely even higher. Those interested in a deeper insight into the subject can find more detailed information in the paper “Bringing the Dead back to Life: Preparing the Estate for a post-mortem Acting Role” by Ben Laney.