Digital Actors and Copyright - From 'The Polar Express' to 'Simone'

Abstract:     
Digital technology is revolutionizing our ability to manipulate, change and recreate images. We can create new images digitally and we can scan existing film and photographs and record them in digital form. Sound can also be digitized. Once digitally captured material exists, whatever its source, it can be manipulated in ways not achievable in an analog world. This makes it possible to create digitally created human actors. Digital actors are useful today, and will become more so with the passage of time and the continued development of technology. Films can be populated with legions of digital extras. Filmmakers can use a few extras, changing eye color, hair tint, skin tone, and clothing, and create what appears to be a vast crowd with apparently infinite variations. Digital actors can perform stunts that would be dangerous or impossible for a live actor, perhaps eliminating the need for stuntmen and women. Digital technology can take viewers to places no real actor, or camera setup, could go.

This brief article looks at digitally created human actors in terms of three paradigms, derived from recent films. The first is "The Polar Express," which used a technique called motion or performance capture for all its characters. The second includes two films, "Spider Man 2," which created digital doubles for Tobey Maguire and Alfred Molina, and "Lemony Snickets' A Series of Unfortunate Events," which created a digital double for the baby, Sunny. The third is the film "Simone," in which a fictional director creates (fictionally) a digital actress. Using these paradigms, I consider the effect of copyright on the creation and protection of these hybrid creatures, derived in part from human beings, and created in part by those employing digital technology. I conclude that, in dealing with the protection of digital actors, we need a more contemporary, flexible, and workable approach than the ones (purportedly) used in protecting fictional characters and that, in dealing with the creation of digital actors, infringement and fair use should be interpreted with some liberality, so that new technology and creation are not unduly inhibited.

Accepted Paper Series