We were just settling in the other evening for some utterly inoffensive television viewing (reruns of “The Big Bang Theory,” if memory serves) when our living room was invaded by a zombie.
Yes, it was Audrey Hepburn, dead these 21 years, digitally dug up from the grave and reanimated to shill for Dove chocolates. You may already have seen this commercial, which began running on Oscars night and is now moving into wider rotation. (Check it out at the bottom of this post.)
Dove and the commercial producers are inordinately proud of their achievement. According to their publicity handout, they first tried hiring an Audrey Hepburn double, then tweaking her features with computer-generated imagery, or CGI. That wasn’t good enough, so they decided to go all-CGI. The digital effects firm Framestore “set about building a facial rig using the FACS [facial action coding system] head scans as reference for the multitude of shapes the human face can achieve. For each of these shapes, combinations had to be carefully created to allow the face to blend convincingly between expressions during the animation process, which was pivotal to authentically reconstructing the actress’s face.”
The final result is impressively almost-real but suffers from what digital effects experts know as “the uncanny valley” -- when an image is just close enough to resemble real life that it’s offputting. Public reaction to the commercial seems to range from delight at seeing Audrey prancing about again on the Italian Riviera to horror at the violence done to her memory. You be the judge. Here’s the clip (or mobile users can find the video on Dove’s Facebook page).
What may be more interesting than the technology is what the commercial says about the exploitation of celebrities’ images after their deaths. This has been a fast-changing area of legislation, driven almost entirely by commercial considerations -- that is, the opportunity for heirs and licensees to make money.
In the U.S., it’s generally accepted that the right to exploit the image of a celebrity -- indeed, almost any public figure -- is a property right that can be passed to heirs. Specific rules such as the duration of the right are set by state law, and they’re all over the map. In California, it lasts for 70 years after the person’s death, in Virginia 20, in Indiana 100.
Indiana? That has something to do with CMG, one of the leading celebrity licensing firms, which happens to be headquartered in Indianapolis. Among CMG’s “clients,” as it calls them, are Amelia Earhart, Al Jolson, and Gen. George S. Patton. The firm’s website places an asterisk next to clients “available for public appearances,” presumably to help you weed out the living from the dead.
People wishing to make use of a celebrity’s image have to figure out which state’s rules apply; it’s probably easiest to assume they’ll all apply and clear the rights for the longest possible period. The area of real potential conflict is how to handle public debate and discourse over a person’s life and legacy.
“You don’t want to read the rights so broadly that they affect public discussion,” says Jeff Hermes, director of the Digital Media Law Project at Harvard’s Berkman Center for Internet and Society. It’s widely accepted that the right of posthumous publicity “can’t be used to block a discussion of an individual for news reports,” he says. Using a celebrity’s name or image in a work of fiction or other artistic endeavor can be touchy, depending on the court asked to rule; commercial advertising is the clearest case -- the advertiser has to pay up. If you want to debate Albert Einstein’s influence on physics, go ahead; if you want to place his face on a T-shirt, Hebrew University gets a cut.
The promoters of these laws used to rationalize them as protecting their subjects’ dignity and legacy after death, but it’s hard to believe that anyone takes that seriously anymore. California’s Fred Astaire Celebrity Image Protection Act, which placed the 70-year rule into effect, was enacted in 1999 at the urging, in part, of Astaire’s widow, Robyn. By then, she had licensed his image for a TV ad campaign showing him dancing (digitally) with a Dust Devil vacuum cleaner. But in a dignified way.
Nowadays it’s almost always about the money, though heirs sometimes try to give a licensing deal more gravitas. For example, Dove’s PR department claims that Audrey Hepburn’s sons, Sean Ferrer and Luca Dotti, “encouraged the use of their mother’s image and likeness in the ad.” They quote Ferrer as saying, “Our mother loved rewarding herself with a piece of chocolate, but it always had to be dark chocolate."
Sure enough, in his 2005 memoir about his mother, Ferrer writes that after her afternoon nap “she would often have a piece of chocolate -- one piece!” I could be wrong, but I’d swear that in the Dove commercial she takes two pieces. The real Audrey Hepburn must be spinning in her grave.
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