Faux entertainers and fashion law fun!
By now most of us have heard about the Tupac Shakur hologram performance at Coachella. But I have yet to see anyone discuss the fashion law related intellectual property implications that such holograms bring up!
While news outlets and blogs have covered the technology behind the hologram, the sudden rise in Tupac’s album sales, and the possibility of taking him on tour, I was most concerned with what Tupac was wearing.
Trademarks* and Copyrights**
Tupac’s hologram wore his album cover’s look: belted baggy jeans and what I assume are Timberland boots.
What are some trademark implications of holograms?
I imagine it could depend on how the brand feels about the use. Let’s say a designer does not want to have his/her trademark on a hologram. What should be the determining factor? If the person wore the clothes while alive, does that make the trademark fair game? If the physical garments are purchased in material form, should they be allowed to be reflected in holograms? Or if a brand wants to be promoted in holograms, who should decide whether it is right? Is this an ethical question?
Should holograms only ‘wear’ things worn by the person who the hologram is made of?
Another trademark consideration here could be whether IP extension would exist if artists were introduced to the public in hologram form (a la Gorillaz); in such a case, the artist could be argued to be a trademark of the record label. In such a case protection would always be viable. Then artists would be contracted out through IP licensing agreements or moved to new owners through a transfer of IP rights.
Copyright protection may be similarly implicated here; however, one justifications for limiting copyright rights is that a copyright protection should not protect technological innovation more appropriate for patent law protection.
Right of Publicity***
In terms of right to publicity, I think it is fascinating that celebrities could potentially create contracts about what they will be wearing or how they will displayed post-death. Estate’s can already cash in by licensing IP or getting royalty payments, I don’t think a hologram should be treated differently.
Do you think celebrities should be able to contract with designers over what the celebrity will wear after death as a hologram?
***Right of publicity confers property-type interest to protect an individual’s marketable image or persona.