The hologram performance of deceased 90s rapper Tupac Shakur at the Coachella music festival last weekend dropped jaws, but also raised the eyebrows of many in the industry, spurring a hot debate about the moral, legal, and intellectual property issues involved with bringing a dead musician back to life for a “digital” performance.  In the few days that have passed since then, sparks of discussion have arisen over the possibility of bringing back to stage some the nation’s most famous long-departed musicians – Elvis, Jimi Hendrix, Freddie Mercury, John Lennon, Jerry Garcia, Joey Ramone, and many others.

Shakur’s hologram performance was commissioned by his former colleague Andre (Dr. Dre) Young, from digital producer Digital Domain Media Group (made famous through its work on the virtual version of Brad Pitt in “The Curious Case of Benjamin Button”) and San Diego-based AV Concepts.  It was the first-ever live performance of a deceased entertainer.

According to reports, the hologram was stunningly realistic, down to the details of Shakur’s movements, skin-art, boots, clothing, and other details. In fact, the performance created such a buzz that it has been announced the hologram of Virtual Tupac will now be going on tour.

A ph oto of the Tupac hologram, courtesy of Spinner.com

The most dazzling element of Shakur’s post-mortem performance was that it was not borrowed from footage of Shakur filmed during his life, but rather, entirely fabricated and produced specifically for the Coachella music festival.  Virtual Tupac performed in front of the audience, addressed them, danced, and pranced around like a living ghost, interacting with the crowd as well as other entertainers. At the beginning of the performance, Virtual Tupac yelled, “What the f— is up Coachella?” even though Coachella was not even founded until 3 years after his death.  In the wake of the performance, some commentators expressed uneasiness that words and actions never said or taken by Shakur could be scripted by others and put into the deceased entertainer’s mouth.

Legally, the digital resurrection of a deceased entertainer brings up a plethora of thorny issues, including the appropriation of the entertainer’s publicity, intellectual property rights to the digital software/video that created the performance, rights to the performance itself, and rights to other works depicting the performance, including footage, video clips, sound clips, and other forms of social media – in addition to the huge issue over royalties and who is entitled to them. In this case, it appears that Afeni Shakur, Shakur’s mother and the legal representative for Shakur’s estate approved (and was in fact “thrilled with“) the performance of her dead son, so concerns about the unauthorized uses of Shakur’s image and likeness may be moot.  It is unclear who the copyrightholder of the Shakur performance is.  Now-defunct Death Row Records, one of Shakur’s former record companies, is already complaining that Shakur’s performance was not sufficiently attributed to Death Row.

But the digital performance also raises significant issues for living  entertainers. When Shakur passed away in 1996, the digital revolution had just begun.  There would have been no way for Shakur to have known that 15 years later, in 2012, his “ghost” would be brought back to life for a live digital performance.  Frequently, entertainers, who already have very little leverage when negotiating with big record companies,  are asked to sign broad assignment of their rights.  The broad release of rights allows record companies and their representatives to use, re-use, and manipulate nearly every conceivable likeness, depiction, and work of the artist, in all venues and channels, irrevocably, in perpetuity, and exclusively.  Many artists and entertainers are often unaware of how much of their rights  they assign over to record companies when they sign a deal.

Should artists and talent be made aware that the release of their rights could extend to new mediums of expression that do not exist today, but could be made possible through advances in technology? Certainly, it’s very possible that artists would find the new forms of expression unsavory.  For example, would a 55-year old Justin Bieber be comfortable with a 15-year old digital hologram of himself waking young schoolgirls from sleep each morning and kissing them goodnight?

Then there is the most important issue – the integrity of the deceased artist himself. Not all deceased musicians end up with responsible representatives managing their affairs in the afterlife.  If it becomes profitable for the legal representative of a deceased entertainer to approve new projects involving the entertainer, there could be virtual performances and other activities attributed to the entertainer that the enterainer may never have agreed to in his or her lifetime.  Imagine Johnny Cash promoting a commercial for Starbucks.  Who should be charged with maintaining the integrity of a deceased entertainer’s unspoken wishes?  Unfortunately, because technological growth so exceedingly outpaces legal rules, there are no easy answers to these questions.

While it is true that individuals can leave instructions in their wills and other estate planning documents, the representatives entrusted with carrying out those wishes are sued all the time for failing to uphold them.  But unless someone takes that legal representative to court for failing to honor the deceased’s wishes, there is no one to stop them for doing something the deceased would not have agreed to.

Further, although the law provides for the protection of unborn voices by permitting for the appointment of guardians who must act in the best interests of unborn children, the dead are sadly left on their own.  Unfortunately, performing in front of a packed crowed at Coachella does not sound like resting in peace.