Simone - The Composite Actress

In the film Simone, Al Pacino plays a desperate director whose star storms off his set and quits his film. He saves his career by using software to create a computer generated actress to complete his film. She is named Simone from the software that gave her birth - Simulation One.

According to the director’s wife, she has “the voice of the young Jane Fonda, the body of Sophia Loren, and the face of Audrey Hepburn combined with an angel, and the grace of Grace Kelly.”47 The role of Simone was actually played by real life actress Rachel Roberts. In the movie, Simone is computer generated but passed off as real. In reality, the reverse was true. A real life actress was used to portray a computer generated one. It is not possible to create a real Simone at present. But it may become possible to create a digital actress that cannot be distinguished from the real. It may not be possible to replicate a passionate human performance, but it may well be possible to create new performers out of bits and pieces of existing ones. II. Copyright and the Creation of a Digital Actor Digital actors are created by combining elements of human beings and elements created by human beings. Only the latter are protected by copyright. Copyright, which protects original works of authorship fixed in a tangible medium, will not protect a person’s voice and image. However, if preexisting materials such as photographs, film footage, and voice recordings are used to create a digital actor, and this material is protected by copyright, the potential for copyright infringement exists. The copyright does not belong to the performer; it belongs to the author of these protected materials. Ordinarily, the author is the one who creates the original elements in the copyrighted work—the photographs, film footage or other underlying material. In some circumstances, particularly when film footage is involved, the film company may be considered the author under the work made for hire doctrine.51 1. Infringement Protected materials are likely to be used in the creation of a digital clone or a composite actor, such as Simone. It is, therefore, necessary to consider when those materials are infringed. Courts do not use a standard test in deciding whether infringement has taken place and may use the same words and phrases to mean different things.52 However, the differences in the way courts set up their tests for infringement may be more “linguistic … than substantive.”53 The basic requirements for showing infringement are (1) ownership of the copyright by the plaintiff, (2) copying by the defendant and (3) actionable copying.54 The plaintiff must show that the defendant has copied protected expression from the plaintiff’s work, and that there are substantial similarities between the defendant’s work and protected elements of the plaintiff’s.55 When preexisting materials, such as photographs, films, and sound recordings, are used in creating digital actors, copying exists, in the sense that the actors are derived in some fashion from the earlier works. But is there actionable copying—has anything protected been embodied within the digitally created actor? In an 1884 case involving a portrait of Oscar Wilde,56 the Supreme Court said that the copyright in a photograph protects original artistic choices such as the selection and pose of the subject, arranging the draperies and other accessories, disposing of light and shade, and evoking the desired expression. Later cases have found other elements protected, including the choice of subject matter, angle of photograph, lighting, the kind of camera, film and lens, and the time and place where the picture is taken.57 The copyright in a raw videotape will protect such elements as the selection of camera, lenses, angle, the choice of height and perspective from which the tape is made, and how long the taping is continued.58 But if protected material is not taken, there is no infringement.59 Creators of a digital clone may not need to make use of any particular costume, pose, editing, or other protected element from a film or photograph. They will seek to replicate as closely as possible the elements of a human being, rather than those created by a human being. The arrangement of facial features and expressions, and the movement of face and body muscles are not themselves copyrightable. The digital performer residing in a computer need not embody elements from underlying works that are protected under copyright. Although the movement of the body and face of the actor may be created by studying or using copyrighted film, it is unlikely that the end results will take protected expression from the film.60 Rather, it will embody elements of the human actor. A composite actor, such as Simone, is even less likely to embody protected expression. In performance capture, there will seldom be a need to capture a voice. The digital characters can be voiced independently. But digital clones must sound like, as well as look like, the original, and composite actors may contain elements of a variety of voices. This is unlikely to be a problem in films like Spiderman 2 or Lemony Snicket, as the voice will be provided by the actor being cloned. But if actors are re-created to perform in new films, or composite actors are created, the issue of voice can become an important one. Filmmakers can attempt to recreate the voice by using existing materials, such as sound recordings or motion picture sound tracks, or by using a sound-alike. The copyright in a sound recording is infringed only if there is recapture of the actual sounds fixed in the recording,61 so the use of a soundalike would not infringe a sound recording copyright. However, the sound track of a motion picture is not a sound recording,62 and the use of a soundalike could theoretically be infringing. However, it would be a great—and unwise—stretch to find that imitating a voice from one or more sound tracks is a taking of protected expression. Recapture of the actual sounds in another matter. If the sounds are taken from a motion picture sound track, the central question is likely to be how much—and how much that is recognizable—has been taken. If, however, the sounds are taken from a sound recording, it is possible that even a small, unrecognizable taking would be considered infringing. In Bridgeport Music Inc. v. Dimension Films,63 the defendant copied a two second sample from the plaintiff’s sound recording, lowered the pitch, and looped and extended it to 16 beats.64 The court held that any digital 2. Intermediate Infringement and Fair Use Even if the digitally created actor is not herself infringing, the process of creating her might involve the use of copyrighted material. A database like the one (fictionally) used in Simone, or one used to create a digital version of a real performer, is likely to use copyrighted material. Existing photographs and film footage may be used to create a digital clone. If copies of an existing work are made in the process of creating the digital performer, the exclusive reproduction right may be infringed, even if the final product does not embody any protected material.69 Intermediate copying is still copying. It is not possible to predict with any certainty how fair use will be applied in a new situation, such as the creation of digital actors. However, the transient copying of reference materials, in order to manipulate them and create a digital actor that is not herself infringing, is more likely to be considered fair use than creating a permanent program and database such as the one used (fictionally) in Simone. A Simone style program/database is capable of competing in a potential market with similar products created or authorized by the owners of the copyrights in the underlying works. Commercial use is direct. Temporary copying of copyrighted materials in order to create a digital actor, however, involves indirect and derivative commercial exploitation and serves the public purpose of increasing the number of digital actors that are not themselves infringing. The owners of copyright in works that are used in the process of creating digital actors should not ordinarily be permitted to control the creation and use of digital actors that do not themselves embody the copyright owner’s creative expression, and do not, therefore, exploit the copyright owner’s creative efforts. This control might also be avoided by creating what would amount to a judicially imposed compulsory license. The remedy granted to the owner of the copyrighted material used in creating a digital actor could be limited to monetary payments, with no injunction being granted. The copyright owner would be paid, but would not be able to control or prevent the creation of digital actors. The Supreme Court has indicated some support for the idea that the goals of copyright law are not always best served by granting injunctive relief.99 However, the creation of such an “ersatz species of compulsory license” would be an exceptional step and would be difficult to structure and administer.