Digital Actors and Copyright - from the Polar Express to Simone

Kurtz, Leslie A., Santa Clara Computer & High Technology Law Journal

Digital technology is revolutionizing our ability to manipulate, change and recreate images. We can create new images digitally and we can scan existing film and photographs and record them in digital form. Sound can also be digitized. Once digitally captured material exists, whatever its source, it can be changed in ways not achievable in an analog world. This makes it possible to create digitally created human actors or synthespians. (1)

It may not be possible to create digital actors in all their full humanity. It is difficult to model the structure and function of facial muscles to allow for convincing dramatic performances, especially when the camera focuses in on an actor's face, (2) or to look into the eyes of a digital character and see its soul. (3) We look at other people all the time, and are familiar with the way they move and behave. We know how their hair, skin and eyes look and move and reflect the light. In a recent study, researchers showed real and digital faces to volunteers to see if they could tell the difference; the volunteers were not fooled. (4)

Digital actors, however, are useful creatures today, and will become more so with the passage of time and the continued development of technology. Films can be populated with legions of digital extras. (5) Filmmakers can use a few extras, changing eye color, hair tint, skin tone, and clothing, and create what appears to be a vast crowd with apparently infinite variations. (6) Digital actors can perform stunts that would be dangerous or impossible for a live actor, (7) perhaps eliminating the need for stuntmen and women. (8) Digital technology can take viewers "to places no real actor, or camera setup, could go." (9) Digital children will not be limited by child labor laws. (10) Wrinkles can be smoothed from or added to a face, (11) allowing the same actor to play a character from youth through old age. (12) Brad Pitt at 60 could perform as Brad Pitt at 20. (13) Anthony Hopkins could play Richard Nixon, looking exactly like Nixon. (14) Dead actors could be returned to life to play new roles in new projects with new co-stars. Marilyn Monroe and Russell Crowe could co-star in a new film. It has been suggested that John Wayne be re-animated. "There is believed to be a great deal of interest in modernizing the western genre while using hardy perennials like Wayne to lend gravitas." (15) Digitally created characters may become sufficiently realistic to share the screen with live performers. (16)

What is the legal status of these electronic actors--these digital human actors? Unlike traditional cartoon characters, like Mickey Mouse, they are derived in some fashion from human beings. But they are created, in large part, by those employing digital technology. Who owns legal rights to these hybrid creations?

Performers and their heirs may be entitled to protection against the creation or re-use of a digital actor embodying elements of the performer's identity. The most likely doctrine to provide this protection is the right of publicity, a matter of state law. Although the right of publicity varies widely from state to state, it generally protects against the appropriation of the commercial value of a person's identity. (17) It allows an individual, particularly a celebrity, to control the commercial value of his name and likeness and, in some states, other indicia of identity. Much has been written about digital actors and the right of publicity. (18) The focus of this article, the effect of copyright on their creation and protection, has received less attention. (19) Unlike the right of publicity, copyright will ordinarily belong to those employing digital technology to create a digital actor, and to those who created any preexisting copyrighted works used in her creation.

Part I of this article will look at digital actors in terms of three paradigms derived from recent films, providing an understanding of some ways in which digital characters can be created and used. The first is the The Polar Express, (20) which used a technique called motion or performance capture for all its characters. The second includes two films, Spider-Man 2, (21) which created digital doubles for Tobey Maguire and Alfred Molina, and Lemony Snicket's a Series of Unfortunate Events, (22) which created a digital double for the baby, Sunny. The third is the film Simone, (23) in which a fictional director creates (fictionally) a digital actress. Part II will focus on copyright issues that may arise in the course of creating a digital actor. Part III will look at the way in which copyright can be used to protect a digital actor once she has been created.

I. THREE PARADIGMS

A. The Polar Express--Performance Capture

All the characters in the motion picture Polar Express were created using what has been termed motion capture or performance capture. (24) In motion capture, an actor is fitted with a body suit covered with reflector dots so that a computer can record the details of his movement as he performs the role. (25) Polar Express used an integrated version of motion capture, attaching reflector dots to the performers' body, face and scalp, allowing digital cameras to capture nuances of the performers' facial movement. (26) As actors perform on a blank stage, their body and facial movements are precisely recorded and entered into a computer. (27) The captured performance, or generated motion, can then be applied to a computer modeled character, giving the digital character lifelike, subtle movements. (28) In Polar Express, 72 cameras were used to provide coverage for four actors and their facial and body markers--152 facial markers and 48 body markers per actor. (29)

Using this technology, anyone can play any role. Indeed, in Polar Express, Tom Hanks played the conductor, the lead boy, the boy's father, a hobo, and Santa. Only the conductor was recognizably Hanks, but the designers found it useful to mimic some aspects of the actor in other characters. For example, the boy was given eyebrows like Hanks' because he uses his eyebrows in acting. (30) Using performance capture, the director can have a camera anywhere, rather than positioning it in key places, filming the action, and then moving the camera. (31)

The problem with the technique, at present, is that the characters do not appear truly human. One review said the characters looked laminated or embalmed. If the eyes are the windows to the soul, "the computer animator can[not yet] open that window." (32) Another said that the technique "leaches [Hanks'] trademark charm and everyday humanity off the screen," and that the characters appear remote and zombie-like, with dead eyes and deadened features. (33) A third commented that the computer-generated characters had been criticized for looking "vacant," or "creepy." (34) Nevertheless, performance capture has substantial uses today and may well be improved. The captured animation and the computer modeled characters are capable of being used in new films and other new contexts, together or separately.

B. Spider-Man 2 and Lemony Snicket's a Series of Unfortunate Events--The Digital Clone (35)

Efforts are being made to create digital actors--computer-generated creations that look, move and speak like the actors on whom they are modeled. With living actors, a laser scan can be used to capture an actor's features and body proportions for use in a digital model. Preexisting materials, such as photographs, film footage, recordings of a performer's voice, and the like, can be used to construct a digital model of an actor, living or dead. When Brandon Lee died during the filming of The Crow, digitally modified outtakes from an earlier scene were used to finish the film. (36) Virtual versions of Oliver Reed and John Candy were used to finish scenes in The Gladiator and Wagons East after their deaths. (37)

For Spider-Man 2, the film's creators wanted realistic digital versions of actors Tobey Maguire and Albert Molina, that could "zoom through the air, around skyscrapers, over trains, and underwater, emoting all the while" (38) and looking indistinguishable from the living actors. The two stars each spent a day in the laboratory. (39) They sat on a "light stage" while four still cameras photographed their heads and faces as they made a variety of expressions, lit from numerous angles. (40) Laser scans and plaster casts were made of their faces and heads, in order to create digital three-dimensional models of their likenesses. (41) These models were manipulated frame by frame, using photographs and footage of the actors, and software was used to calculate lighting changes. (42)

The creators of the film Lemony Snicket's a Series of Unfortunate Events needed the toddler character, Sunny Baudelaire--played by 18 month old twins--to do things like hang from a table by her teeth and catch a wooden spindle in her mouth. (43) So they created a computer-generated image ("CGI") double. They could not do this by using a laser scan to create an image of either toddler, since that would have required her to stand perfectly still, without breathing, for thirty-eight seconds. (44) Furthermore, the digital Sunny would be seen in close-up, and it was important "not to draw attention to the fact that the screen-filling image of the toddler …

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Publication information: Article title: Digital Actors and Copyright - from the Polar Express to Simone. Contributors: Kurtz, Leslie A. - Author. Journal title: Santa Clara Computer & High Technology Law Journal. Volume: 21. Issue: 4 Publication date: May 2005. Page number: 783+. © 2000 University of Santa Clara, School of Law. COPYRIGHT 2005 Gale Group.

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