It looks like I wasn’t the only one who felt that Peter Cushing was being abused by finding himself in “Rogue One” without his prior consent. Of the late actor being digitally inserted into a role he never agreed to play and deliver lines he never contracted to deliver, I wrote…
The emerging technology raises many ethical issues that didn’t have to be considered before, but when it comes to using a dead actor in a new role, the ethics verdict should be easy. It’s unethical, unless a performer gives informed consent for his image to be used post mortem in this fashion. Presumably, the consent or the lack of it will be part of future negotiations and standard contracts. Actors who agree to have their images used as cyberslaves will also probably want to limit the uses of their names and images.
Cushing’s exploitation and the subsequent death of Carrie Fisher with widespread speculation that she would soon be added to the “Star Wars” franchise’s army of CGI clones have now sounded the alarm loudly. But apparently many actors were already aware of the threat, and taking affirmative action to control their destinies.
Filmmakers are tapping advances in digital technology to resurrect characters after a performer dies, most notably in “Rogue One: A Star Wars Story.” The film, in theaters now, features the return of Grand Moff Tarkin, originally played by a long-dead actor.
The trend has sent Hollywood actors in the here-and-now scrambling to exert control over how their characters and images are portrayed in the hereafter.
“Celebrities are increasingly involved in making plans to protect their intellectual property rights,” said Mark Roesler, an attorney and chairman of CMG Worldwide, an agency representing celebrity estates. “They understand that their legacy will continue beyond their lifetime.”
Roesler said at least 25 of his clients are engaged in actively negotiating the use of their or their loved ones’ computer-generated images in movies, television or commercials. Employment contracts govern how they can be used in a particular film or commercial, while a performer’s will can address broader issues.
Some actors or heirs worry that overexposure will tarnish a celebrity’s image, Roesler said. Some explicitly rule out posthumous depictions involving sex or violence, while others focus on drugs or alcohol.
“We have seen people address marijuana,” he said. “We’ve seen liquor addressed.”
California law already gives heirs control over actors’ posthumous profits by requiring their permission for any of use of their likeness. As technology has improved, many living actors there are more focused on steering their legacy with stipulations on how their images are used – or by forbidding their use.
Robin Williams, who committed suicide in 2014, banned any use of his image for commercial means until 2039, according to court documents. He also blocked anyone from digitally inserting him into a movie or TV scene or using a hologram, as was done with rapper Tupac Shakur at Southern California’s Coachella music festival in 2012 – 16 years after his murder.
Excellent. Now they know. It was too late for Peter Cushing, but if a current actor lets himself get turned into a cyber-puppet without his consent, he has nobody to blame but himself. Actors are on notice. They have been warned. They work in a profession and culture that will squeeze every last dollar out of their talent for as long as it can, forever if possible.
Now, at least, if that happens, the actors will have some control.
Good.
Ethics Alarms 
They will just have to suck it up and recast it if the character is essential to a series. Bond and Dumbledore have succeeded. The first actor is not always the best to play the part. If that was true, Shakespeare’s plays would be long dead.
And, apparently, Disney’s quick idea to through together another Aladdin sequel by taking advantage of all of the material that didn’t make it to film crashed and burned quickly when Williams’ will also forbade the use of his voice. Williams saw where the prevailing winds were blowing and made sure his loved ones wouldn’t be subjected to his face and voice hawking products.
As opposed to, say, Cushing’s family, which was apparently quite happy to sell his image, voice and persona to Disney to turn him into another animated character, whether he would have approved or not.
Disney apparently gets $50M in insurance for Fisher unable to complete her contract. That should about cover their CGI expenses to turn her into a tumbling and flipping master light saber user like Yoda in episode II
Tim, I’m not a lawyer and am totally unfamiliar with this kind of law in any case. So, a question…if she was under contract already, and passed away, would that contract be then null and void, or could the studio argue that the technology allowed the contract to be fulfilled by the use of a CGI, thus keeping the contract in force? Payment would continue, going to the estate and heirs.
It’s a production insurance. They insured their production against the damage of an untimely death or drug relapse, etc etc etc. Whatever insurance she held personally would go to her estate.
Tim, you’re talking about insurance, and I’m asking about her contract. Two different things. The question was “if she was under contract already, and passed away, would that contract be then null and void, or could the studio argue that the technology allowed the contract to be fulfilled by the use of a CGI, thus keeping the contract in force?”
Ah… gotcha. My bad. I’ve only just now fired up my brain for the year. Might take a couple weeks to hit full operating power. (Which is still a fraction of the average.)
I would wager that her 3-picture deal on eps 7-9 addressed this eventuality directly….but we will probably never know. If it’s not addressed directly then I do believe the studio would have to negotiate with the estate. That’s a rather large risk to not mitigate by an upfront contract…so I stick by my wager.
Just an FYI, one of the main reason I ask questions of both you and Jack (and a very few others)is because both of you give clear, concise answers that I can (usually) understand, as you have here. I probably would agree with your wager. At the young age of 60, the probability of a heart attack is still relatively small (‘relatively’ being a relative term…sorry, couldn’t resist) so it would likely would not be covered in the contract.
It’s actually what held up Robert Downey Jr for a number of years prior to Iron Man. With his penchant to be unreliable and relapse to addiction, a studio couldn’t find an insurer to cover him. Ideally, this is meant to cover primarily the need to go back and restart the entire production with a new actor. If you have a $100M picture like Iron Man (2008) and Robert Downey Jr shoots half the scenes and then bounces to go buy drugs and refuses to come back, you need insurance for that so you can recast and restart. I think advances in CGI make it cheaper to fix the production and not lose every shot, but if it’s heavy action without masks and suits (like a Tom Cruise Mission Impossible) then you really have no choice but to scrap nearly everything.
I’m truly not trying to be facetious here, but not being a lawyer, and also being very curious about these things, I wonder how a deceased actor, under contract to a studio prior to his/her death doing a long-term series, would find their “cost-of-living increase clauses” dealt with if the studio then used CGI, or whatever, to make use of that actor’s talents, at a much-later date? If they’re claiming their contract had remained valid throughout the ensuing period, I would think those cost-of-living increases could be quite substantial.