‘Welcome to Whitney Houston, very much live!’ - This is how the Whitney Houston hologram introduced herself at her posthumous hologram tour in 2020. Just two years ago, Drake left fans stunned as he performed beside a hologram of his younger self on the ‘It’s All a Blue Tour’. From Tupac’s holographic performance at Coachella to ABBA’s CGI concert, it’s clear that the technological landscape of live music shows is ‘Never Gonna Give You Up’ when it comes to evolving. Unlike some US states, there isn’t a codified personality right in the UK. This means our legal system is often forced to stretch older concepts to protect artists' rights.
Passing off
Instead, our courts generally use the tort law approach called ‘passing off’. Originally used to protect the IP rights of individuals where another person seeks to exploit a similarity between their goods and services, passing off can provide protection for celebrities' images or names from unauthorized use.
Three elements need to be satisfied to prove passing off:
1. Goodwill (Hunting?)
The claimant's goods or services must possess goodwill or a reputation in the minds of the public, which is associated with their name, image, or other distinguishing features. In the context of a music artist, this requires demonstrating that their name, voice, performance style, or overall persona has established an attractive force which brings in custom, enduring even posthumously. Evidence to prove this often includes substantial album sales, successful past tours, streaming figures, merchandise sales, and continued cultural relevance. Take, for example, Cristiano Ronaldo. His success in trademarking his iconic ‘Siiuuu’ celebration for commercial purposes perfectly illustrates how a distinctive act can acquire significant goodwill and become a protected brand asset. But hunting for this level of goodwill, particularly for individuals who lack a well-established commercial presence, presents a significant challenge, as the reputation must be sufficiently widespread and distinctive to avoid confusion amongst consumers.
2. Misrepresentation: The Great Pretender
The claimant must demonstrate that there has been a misrepresentation made by the defendant to the public, which may be intentional or unintentional. The core principle is that the defendant has deceived the public into believing their goods or services are associated with, or endorsed by, the claimant. Staging a Whitney Houston hologram concert without authorization from her estate would clearly constitute a misrepresentation, as it implies an official endorsement where none exists.
However, the Amy Winehouse hologram tour, planned by Base Hologram in 2018 with explicit authorization from her estate via her father, Mitch Winehouse, highlights the limitations of the misrepresentation element, despite the controversies that led to its indefinite postponement. While Amy’s ex-husband, Blake Fielder-Civil, called the tour ‘completely misleading’ because it ‘can’t have the same interaction to Amy,’ and a significant portion of fan backlash centred on perceived exploitation of her image for profit, these concerns do not equate to legal misrepresentation for passing off. This is because passing off is narrowly focused on commercial deception regarding the source or endorsement of goods and services, rather than broader ethical or artistic concerns. As the tour was authorised by Amy’s estate, there was no deception about the origin of the show, even if the public felt ‘deceived’ by the premise of a hologram depicting a ‘real’ Amy Winehouse concert. It seems some fans just wanted to tell the hologram, 'You know I'm no good... at being the real Amy!'
3. Damage: A ‘Hard Day’s Night’ for Your Reputation
The final element is that the claimant must show that the misrepresentation caused or is likely to cause damage to their goodwill. This can be shown through loss of sales or damaged reputation. For example, the US rock band Pearl Jam alleged that the UK tribute band Pearl Jamm created confusion for Pearl Jam’s fans which would dilute the US band by benefiting from the goodwill of the original Pearl Jam without authorisation. Pearl Jamm ultimately changed their name to Legal Jam to avoid litigation, understanding that fighting on could mean that their legal costs would soon be ‘Livin’ on a Prayer’.
Can passing off stretch to cover an unauthorized posthumous hologram concert? While an artist’s goodwill can certainly endure beyond their final bow, applying this old-school legal track to cutting-edge digital resurrections is where the challenge truly hits. Proving quantifiable damage to enduring goodwill from a digital performance can be tricky if the estate isn't actively exploiting the likeness in similar ways. Can damage be done to an artist’s goodwill if they are no longer alive? The law hasn’t reached a clear conclusion yet. Therefore, while theoretically possible, passing off often remains a legal ‘stretch’ rather than a clear-cut solution for these new-age digital encores.
Personality rights in the US: Where the American Dream Extends to Your Stardom
While not recognized on a federal level, some states in the US offer a more direct form of protection through the Right of Publicity, considered as a type of personality rights, in either statute law or common law. When it comes to bringing stars back to life, it should be noted that approximately 20-25 states recognize a post-mortem right to publicity.
A significant recent development was the bill signed by Governor Andrew Cuomo in New York, which came into effect on May 29, 2021. This was particularly impactful because, prior to this law, New York, despite being a major entertainment hub and an ‘Empire State of Mind’, did not recognize a post-mortem right of publicity at all. The new bill protects the rights of those who have commercial value at the time of their death, if they were domiciled in New York, and extends 40 years after the 'deceased performer’s' death. These rights are defined as the protection of the individual’s ‘name, voice, signature, photograph or likeness’ against unwanted and unauthorized commercial exploitation and digital replicas. This would potentially include any technological advances ranging from holograms to the use of CGI.
For a globally recognized illustration of how publicity rights apply, consider the Michael Jackson performance at the 2014 Billboard Music Awards, which took place in California, a state with robust post-mortem publicity rights. With the use of a digital projection called Pepper’s Ghost illusion (commonly referred to as a hologram), the King of Pop appeared to perform his song ‘Slave to the Rhythm’ posthumously on stage. This groundbreaking appearance was explicitly authorized and overseen by Michael Jackson's estate. The estate's decision to license his likeness and performance for this commercial event was a direct exercise of their inherited post-mortem Right of Publicity. If such a performance were to be staged without the estate's explicit permission, the estate would have a clear and direct cause of action. This provides a much more straightforward legal challenge than relying solely on common law principles like passing off, as it directly protects the commercial value of his iconic identity. In the US, when it comes to a star's image, they truly mean business – no ‘Smooth Criminals’ getting away with unauthorized use!
Potential Solutions for UK Law: Striking a New Chord for Hologram Shows
1. Getting in Tune: Why the UK needs to get Pitch Perfect on Personality Rights
Right now, protecting a celebrity's image in UK law often feels like trying to conduct a symphony with only one instrument – and that instrument is sometimes a bit off-key. But what if the UK introduced a new, dedicated personality right? That would be the legal 'chart-topper' we've all been waiting for! It would finally provide the full orchestra, simplifying legal action by letting artists and their estates skip the convoluted 'passing off' dance. This direct pathway would be pure harmony for protecting their image, especially when it comes to those crucial posthumous hologram shows.
Yet getting the UK legal system to adopt such a direct right isn't as simple as dropping a new single. Historically, UK law has been a bit of a traditionalist, preferring its tried-and-tested common law approach to privacy and image rights. It has resisted a broad, codified personality right, opting instead for a piecemeal strategy through various existing torts and statutes. Crafting such a sweeping new right also presents a complex challenge, requiring careful legislative drafting to ensure it strikes a delicate balance between safeguarding individual rights and upholding fundamental principles like freedom of expression and the right to parody. Surely no one wants to accidentally silence a comedian's spot-on Boris Johnson impression, complete with the dishevelled blonde mop, just to protect a celebrity's digital clone.
2. From Vinyl to Virtual: Remixing Existing IP law for the Hologram Age
If a shiny new personality right is still stuck in legal production, the UK could always try giving its existing IP discography a serious remix. This approach involves adapting and extending current IP laws to better cover the nuances of digital likenesses and posthumous performances. The Copyright, Designs and Patents Act 1988 (CDPA) obviously wasn't drafted with digital resurrections in mind! While it graciously protects elements like original music recordings that might be part of a hologram, it's not quite ready for the main event – the resurrected star themselves.
So, the bigger question for ‘remixing’ the CDPA is how it might specifically protect the likeness or persona of a deceased artist when that likeness is part of a newly generated performance, not just a recording of an old one. Parliament could start hitting refresh on some new definitions and interpretations within the CDPA. For instance, new statutory provisions could explicitly define a 'digital likeness' or 'AI-generated performance' of a deceased artist as a specific type of protected work. This would directly recognize and protect up-and-coming new digital forms such as holograms. The challenge, of course, is that even with such an upgrade, copyright inherently protects the expression of a work, not the underlying identity or persona of the person themselves. It's about owning the song, not the singer's face, making it a clever, but perhaps not entirely comprehensive, remix – a bit like putting a fresh beat on an old track, but it's still not a brand-new single.
Next up on our legal remix album are Performer's Rights, also found tucked away in the CDPA. These rights currently give performers control over the recording and exploitation of their live performances. However, just like a classic album, these rights generally end when the performer passes away, or they don't quite cover someone creating a brand-new digital doppelgänger which mimics their Moonwalk.
To truly give the digital encore its due, these rights would need a serious upgrade. Parliament could extend Performer's Rights to explicitly cover unauthorized digital reproductions or AI-generated ‘performances’ that mimic a deceased artist, giving their estates control over these stage appearances. More critically, these rights would need to be extended posthumously, ensuring that the artist's legacy isn't just a cheap cover version played without consent.
The Future is Holographic: Is UK law Ready to Rumble?
Having taken a deep dive into the legal concert hall, it's evident that the UK's current IP discography isn't quite ready for the holographic age. Its existing legal instruments – like the often-strained Passing Off and the classic CDPA – feel less like a protective symphony and more like a kazoo trying to back a rock concert. This leaves artists and their estates shockingly vulnerable when their digital selves rise for a posthumous encore. Across the Atlantic, the US legal system is seemingly hitting all the high notes with its robust publicity rights, making the UK's reliance on old-school legal mixtapes look out-dated. We've explored two potential paths for the UK to finally hit the right notes: either by bringing in a brand-new, dedicated Personality Right – the ultimate legal chart-topper – or by giving its existing IP laws a serious remix, updating Copyright and Performer's Rights for the digital age.
But this isn't just about ensuring a deceased pop star's hologram gets paid; it's about the entire future of digital identity. Hologram shows are no longer a sci-fi fantasy but a booming segment of the entertainment industry, with more ‘digital resurrections’ undoubtedly waiting in the wings. Beyond the stage, the rapid advancements in AI, deepfakes, and sophisticated digital avatars are posing fundamental questions for traditional intellectual property law globally. Even the K-pop industry has introduced several virtual idol groups which have performed on music shows. These technologies challenge established notions of authorship, ownership, and even personal identity, demanding that legal frameworks evolve at a speed previously unheard of. It's clear that if the UK wants to avoid being left in the legal dark ages, its IP laws must quickly learn to keep pace and brace themselves for future surprises.
Ultimately, for the UK to truly shine on the global stage of digital entertainment, its legal system needs to be able to conduct a full, modern orchestra. It's time to fine-tune the instruments, write new scores where necessary, and ensure that the legacy of every artist, whether performing from beyond the grave or creating groundbreaking digital art, is justly protected. Otherwise, the UK risks its legal system being out of sync with the times, while the holograms go on serenading the crowds without proper legal protection for its biggest stars.
Michelle Chung, June 2025
