The Tupac Shakur "hologram" used onstage at Coachella Valley Arts & Music Festival over the weekend isn't a novelty in just the live music business. It's also a rarity in entertainment law.
"It's very unique," says Donald Passman, an entertainment attorney for the Los Angeles-based firm Gang, Tyre, Ramer, and Brown, Inc. and author of "All You Need to Know About the Music Business."
The performance of Dr. Dre and Snoop Dogg at Coachella featured a two-dimensional digital reproduction - not an actual hologram - of the late rapper Tupac Shakur projected onto a screen. In effect, Tupac appeared to be performing right there on stage. The reproduction used in the songs "Hail Mary" and "2 of Amerikaz Most Wanted" was created by Digital Domain Media Group, the company's CEO told the Wall Street Journal.
That use of image didn't come for free, says Passman. The final digital reproduction that was used on stage "had to have started with some image of Tupac, and somebody would own that image," he says. "Somebody would have taken a copyrighted picture of it."
Rights issues and fees extend beyond pictures. Had the Shakur image been a film, Passman says the record company may own the rights because record labels' exclusive recording agreements often cover any recording made of the artist during the term of the contract. "If this was like a TV performance or something like that they manipulated, the record company may have something to say about it as well."
Other artists' likenesses have been used in untraditional ways in the past. The Black Eyed Peas' Will.I.Am appeared on CNN via hologram on the presidential election night in 2008, although Passman notes that was a promotional use of his likeness. The use of Elvis Presley's likeness and image in a duet with Celine Dion on "American Idol" in 2007 most certainly involved rights issues, although CKX, the owner of "American Idol," also owns 85% of the company with the rights to Presley's name, image and likeness, Elvis Presley Enterprises.
Typical uses of an artist's likeness include merchandise, album artwork, sponsorships and commercials. But Passman says the Tupac example is "very different" than the usual use of an artist's likeness because the producer manipulated the image and repurposed it for a specific event.
How much would it cost to use Tupac's likeness for two songs at a Coachella performance? "Boy, I have no idea," says Passman. "I guess if I represented him I would want a good sized fee for it because it's an element of the show. And I could go anywhere from what I would charge as a live artist to show up as a guest down to what I would charge to do a lighting design." But he admits arriving at a fee wouldn't be easy. "There's no precedent for it."