The passing of Carrie Fisher (October 21, 1956 – December 27, 2016) has caused an unprecedented stir in Hollywood – most notably due to the reprisal of her role as Princess Leia in 2015’s Star Wars: The Force Awakens and in speculation over her character’s return in yet-to-be-filmed episodes. Filmmakers have been utilizing advances in digital technology to resurrect characters after a performer dies. Another from the Star Wars cannon, Grand Moff Tarkin, originally played by long-dead actor, Peter Cushing, was recreated in the recent Rogue One: A Star Wars Story.
I would like to pause here and quote her speech at the 2005 AFI Lifetime Achievement Awards ceremony. The award was being presented to George Lucas.
“Hi, I’m Mrs. Han Solo, and I’m an alcoholic. I’m an alcoholic because George Lucas ruined my life. I mean that in the nicest possible way.
Fifty-seven years ago, I did his little ‘Star Wars’ film, a cult film that then went on to redefine what they laughingly referred to as “the face of cinema.” And now, sixty-five years later, people are still asking me if I knew it was going to be that big of a hit. Yes, I knew! We all knew.
The only one who didn’t know was George.
We kept it from him, because we wanted to see what his face looked like when it changed expression.
George is a sadist. But, like any abused child wearing a metal bikini chained to a giant slug about to die, I keep coming back for more.
Only a man like George could bring us whole new worlds populated by vivid extraordinary characters, and providing Mark and Harrison and myself with enough fan mail, and even a small merry band of stalkers – it’s lovely – keeping us entertained for the rest of our unnatural lives.
George, the fact that you made me into a little doll that my first husband could stick pins into – a shampoo bottle where people could twist my head off and pour liquid out of my neck – “lather up with Leia and you’ll feel like a princess yourself!” … and yes, the little Pez dispensers so my daughter Billie could pull my head back and pull the wafer out of my neck every time she doesn’t want to do her homework – I suppose I don’t mind.
And though amongst your many possessions you have owned my likeness lo these many years, so that every time I look in the mirror I have to send you a check for a couple of bucks. (emphasis added)
Not to mention you had the unmitigated gall to let that chick – the new girl, who plays my mother, Queen Armadillo, or whatever her name is? – she wears a new hairstyle and outfit practically every time she walks through a door! I mean, I bet she even got to wear a bra, even though you told me I couldn’t, “because there was no underwear in space!”
I’m only slightly bitter, because YOU, my formerly silent friend, are an extraordinary talent, and let’s face it, an artist – the like of which is seen perhaps once in a generation, who helps define that generation – and who deserves every award I now spend the latter half of my Leia-laden life helping to hurl your way!
And in conclusion, your honor, I hope I slept with you to get the job, because if not, who the Hell was that guy?”
My question is: Did she really think that her life would completely be defined by this one character? If so, don’t you think that she would like to be paid every time someone twists her head off a shampoo bottle as opposed to George Lucas making all of the money?
According to intellectual property law as it currently stands, George Lucas owns the copyright in the Princess Leia story and the character mark in her name and likeness. Carrie Fisher has a right of publicity in California.
The Court in Klinger v Conon Doyle’s Estate, Case No.: 1:13-cv-01226, US Dist. Ct. Nth Dist. Ill East. Div. (2013) determined that “[A] complex literary personality can no more be unraveled without disintegration than a human personality.” Further US legal precedent exists for protecting characters separately from the works they inhabit. The theory originated with Judge Learned Hand, Nichols v. Universal Pictures Corp., 45 F.2d 119 (1930), who said, that “the less developed the characters, the less they can be copyrighted.” This rule has been applied to protect not only cartoon characters such as Mickey Mouse (clearly copyrightable as a work of graphic art), but also the character personalities of James Bond, Rocky Balboa and Rhett Butler (Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co., 900 F. Supp. 1287, 1296 (C.D. Cal. 1995).
Clearly, Princess Leia will be protected. What of Carrie Fisher’s portrayal?
A society defines itself by a limited number of stories. These stories have their own icons and are particular to that society. In ancient Greece, it was the Iliad and the Odyssey; in the modern world, it is Star Wars. “There is currently a strong trend to ‘propertize’ everything in the realm of information. Intellectual property law is expanding on an almost daily basis as new rights are created or existing rights are applied to give intellectual property owners rights that they never would have had in an earlier time.” (Lemley, 1997)
According to the new Guernsey Image Rights Ordinance, Carrie Fisher, and now her estate, can register her image – as herself, as Marie from When Harry met Sally, as Princess Leia – as an item of intellectual property. The right of publicity law remains a fluid and erratic area of protection due in part to the fact that not all jurisdictions have enacted laws specifically protecting the right of publicity. This is why the Guernsey Image Right legislation can be so useful in the protection of personality. Firstly, it requires fixation; and as such, secondly, it can be registered. This turns a personal right into a property right.
But how can a Guernsey registration protect an American personality? As briefly noted above, a broader right of publicity is developing to include “likeness.” In White v Samsung Elecs. Am., Inc., 971 F.2d 1395 (9th Cir. 1992), Vanna White sued Samsung for breach of her right of publicity because Samsung used a robot in an evening gown and blond wig in an advertisement that evoked the aura of the Wheel of Fortune game show set. The robot was obviously not Vanna White, nor was it a look-alike human woman, so the conventional statutory right of publicity definition of “likeness” did not apply. Nevertheless, the court held that under the common law right of publicity, a broader interpretation of “likeness” was appropriate—one that encompassed a commercially valuable identity brought to mind by the images depicted in the Samsung advertisement.
There are still many shortcomings to the right of publicity which can be overcome by using the Guernsey image rights register. The law has been written to be compliant with international IP conventions and as such should be enforceable in jurisdictions where reciprocal recognition of relevant legislation exists. In situations where a money judgment order has already been made, many jurisdictions will automatically ensure this is so under reciprocal agreements. (E.g. UK – Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK). California – Uniform Foreign-Country Money Judgments Recognition Act)
Once registration is complete, all recognizable characteristics of that personality are automatically protected against unauthorized commercial exploitation by others. Providing infringement can be evidenced in Guernsey (irrespective of where it occurs), the protection is potentially global in reach. Better still, by creating actual IP assets, these can be integrated into effective inheritance planning ahead of death, thus – potentially – taking them out of the estate probate process entirely. In other words, registered personality can continue without interruption and independent of the celebrity upon which it was based. Unlike most US rights of publicity, registered personality rights can be renewed indefinitely and are much broader in scope. Voice, likeness, mannerisms, gestures, sounds, personal data, social network profiles and so forth can all be protected. (Laker, 2016)
It should be noted that registering one’s IP in Guernsey does not mean that one has to hold that property in Guernsey. Most often those property rights will be owned personally and subject to tax in the jurisdiction in which that person normally pays tax. However, creating those rights in Guernsey does provide entirely legitimate wealth-planning opportunities for those that wish to structure their affairs accordingly. This makes them a hugely powerful management tool for Carrie Fisher’s estate. Her, or any, registered personality can be as granular as necessary, allowing different aspects of the personality to be exploited and protected entirely independently of each other. Registered Image Rights are not just a matter of wealth planning, but of good law.
Private property rights in intellectual property goods are a simple result of changes in economic value that stem from the development of new technology and the opening of new markets. In providing for ownership of personas, it should be remembered why this is being done. The world of artistic expression is a marketplace in which resources are scarce. Carrie Fisher’s estate should take advantage of the new law to protect her legacy, in this galaxy and the one far, far away.