Wednesday, May 2, 2012

Intellectual property implications of holograms

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!

When I first heard of Tupac's hologram I remembered that he is currently a 'Draw Something' app art prompt. This got me wondering who is promoting Tupac so much. As my conspiracy theories about Tupac being alive wore off, I refocused and started wondering who is profiting from Tupac's image. Being too lazy/uninterested to even google this I figure Dr. Dre and Snoop Dogg are the ones who mainly profit.

Source: via Fashion on Pinterest

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 do you think could be the trademark implications on holograms? 
Holograms can easily bring up new legal ground for courts.
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 the artist wore while alive? 
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. 
Should celebrities be able to contract with designers over what the celebrity will wear after death? Is it okay for a dead person's estate to cash in on the dead person's image? Estate's can already cash in by licensing IP or getting royalty payments, should a hologram be treated differently?

♥ Thanks for reading and supporting my blog! 
*Trademarks are distinctive source identifiers, words, logos, slogans, or a combo thereof, used in connection with goods or services.
**Copyright protection subsists in original works of authorship fixed in a tangible medium of expression.
***Right of publicity confers property-type interest to protect an individual's marketable image or persona.

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