By Jonny Lupsha, News Writer

The image of famed actor James Dean will be digitally recreated for a role in a new film, Reuters reported. Photos and old film footage will be used to create his image while an actor will provide his voice. Stand-in actors will fill in to film body movements. Issues of the controversy surrounding this endeavor include questions of usage rights.

According to the Reuters article, the producers of the upcoming Vietnam-era film Finding Jack have procured the rights from James Dean’s estate to recreate his likeness and put him in a movie 65 years after his death. A similar technique was employed to cast the late Peter Cushing in Star Wars: Rogue One, reprising his role more than 20 years after his death. The ability to do this has been made possible in recent years through advances in computer technology including facial mapping and motion capture. However, it raises concerns about the rights to intellectual property, like someone’s likeness.

Intellectual Property—Why It Matters

What does intellectual property mean? “Intellectual properties are things you own that come out of your mind,” said Dr. Michael G. Goldsby, the Stoops Distinguished Professor of Entrepreneurship and Executive Director of the Entrepreneurship Center in the Miller College of Business at Ball State University. “That concept is one of the most important aspects of what drives our capitalist system. Without the ability to protect intellectual property, entrepreneurs wouldn’t have as much incentive to create some of the groundbreaking products and services they do.”

In other words, if someone could copy whatever you made—be it a book or painting or a business model or the designs on a vacuuming robot—and pass it off as their own and make money for it, it takes money that is rightfully yours for an idea that cost your time, effort, and intelligence to create. Fortunately, this is often recognized as intellectual property theft and is against the law.

“The U.S. Constitution protects your rights to have and own original ideas for products, logos, images, and creative works,” Dr. Goldsby said. He then read Section 8 of Article 1 of the Constitution—”The Congress shall have power to promote the progress of science and useful arts by securing for limited times to authors and inventors exclusive rights to their respective writings and discoveries.”

It bears repeating that the filmmakers of Finding Jack successfully worked out a deal with the estate of James Dean to use his likeness in their film.

Patents, Trademarks, and Copyrights

Intellectual properties are protected through patents, trademarks, and copyrights, depending on their nature.

The importance of patents: “In a provision of Title 35 of the United States Code, we find two requirements of what can be patentable,” Dr. Goldsby said. “First, the invention must be a new and useful process, machine, item of manufacture, or composition. The second requirement of your invention that has to be met to get a patent is that it must be non-obvious and reproducible by one skilled in the art.”

Unfortunately, this is far less straightforward than it sounds. Questions of exactly how different one product must be from another arise immediately. There are also important limits to set. A law of nature can’t be patented, and the clause that an item must be “reproducible by one skilled in the art” means you can’t just patent a futuristic idea like “flying car” without being able to show it working and explain how you made it.

The importance of trademarks: “Trademarks are names or logos that you see for companies, products, and services,” Dr. Goldsby said. “More specifically, a provision in Title 15 of the U.S. Code states that trademarks are ‘any word, name, symbol, or device that identifies the goods and services of one entity from the goods and services of another in interstate commerce.’”

In simpler terms, the term “potato” can’t be trademarked, forcing everyone to pay royalties to its owner, because it’s such a general term. However, a specific enough term like a company name—say, The Great Courses Potato Company—could be.

The importance of copyrights: “Specifically, the government states that [a copyright] grants automatic protection to printed works, software, artwork, photos, video, and practically everything on the internet once it is ‘fixed in any tangible medium of expression,’” Dr. Goldsby said. “The duration of copyright for a protected item is 70 years. After that, the copyrighted work goes into the public domain and it’s free and available to everybody.”

These intellectual property laws and provisions have helped protect businesses, products, and services and are the reason careful negotiations must have been made to use James Dean’s likeness in Finding Jack. Clearly they were, because for the first time in 65 years, Dean is about to make his return to the silver screen.

Dr. Michael G. Goldsby contributed to this article. Dr. Goldsby is the Stoops Distinguished Professor of Entrepreneurship and Executive Director of the Entrepreneurship Center in the Miller College of Business at Ball State University.