Do Motion Capture and Posthumous Performances Have Rights?
By: Sara Brooke Christian
Tags: Filmmaking, Film Analysis, Performance, Motion Capture, Cinema

20th Century Fox

Leave Synthespians Alone! Motion Capture and Posthumous Performances Are People Too!

“Apes together strong.”

This quote, from War for Planet of the Apes (one of the best films of 2017), was uttered by the lead character in the concluding chapter of Matt Reeve’s prequel trilogy. Caesar, played by Andy Serkis, is the central character and emotional backbone of all three films.

He has more screen time than any other character in the films, but there is no point at which the audience watching the film actually see’s Andy Serkis. His entire performance, as well as the performances of a majority of the cast, was captured with motion capture technology.

Negotiations of screen performances have come into more conversations after The Lord of the Rings trilogy, where Serkis played the character Gollum. The Gollum Problem, as Phillip Auslander refers to it, explores the relationship between performance and intellectual property law.

This looks into both motion capture and posthumous performances in relation to intellectual property.

Motion capture refers to “the recording of human body movement for immediate or delayed analysis and playback.” It maps “human motion onto the motion of a computer character.”

Technology of this type dates back to 1915 when a process known as rotoscoping became a technique used by animators and filmmakers. To rotoscope is to trace animation over existing film footage featuring live actors playing out entire scenes.

According to Lisa Bode, Serkis’s performance as Gollum…

…was a seamless synthesis of acting and animation, which, as a result of problems with its categorization and appraisal, was overlooked by the Oscars.

Visual effects (VFX) departments have grown larger as technology has allowed artists and storytellers to create computer-generated visuals. A VFX supervisor works closely with the director, often side by side, and helps design the look of the film.

The relationship between the visual effects supervisor and the director is changing quickly as the interest and capabilities of visual effects increase.

For instance, the 1999 action film The Mummy used just over 200 shots with visual effects components. In contrast, just over ten years later, the 2011 comedy Bridesmaids used 225 shots with visual effects components.

Movies do not have to be big-budget fantasy films to incorporate extensive visual effects. Digital tools have quickly changed the landscape of visual storytelling and have become a fundamental part of the film making process.

Performance capture takes the scene out of mise-en-scene and relocates it to the computer. — Lori Linday

Photo by Ryan Garry on Unsplash

Filmmakers such as Peter Jackson and James Cameron uses extensive visual effects that become necessary in order to tell the story. Cameron refers to motion capture as performance capture. His films involve a camera being mounted to the head of the actors recording their eye movements and facial expressions.

This breakthrough in technology ushered in a new style of performance and acting. According to Lori Landay, “footage of action sequences being filmed this way resembles an abstracted performance of movement more than the narrative film as we have come to know it.”

So how does the spectator differentiate between what is real and what isn’t?

And what role does CGI play in this cultural shift in storytelling when performances are created where the audience cannot tell what is real and what is CGI?

And how would that affect performers like Andy Serkis?

What new relationships between performance and spectatorship, between the visible and invisible, arise from bodies that are not actually there? Spectators are aware of the loss of indexicality (whether they know that term or not) due to the massive publicity around the digital production process; they know that what they are seeing was never actually there. — Lori Linday

Dan Stevens was the central romantic lead in the live-action adaptation of Beauty and the Beast from 2017. There are most likely plenty of people that watched that entire film without realizing that Matthew from Downtown Abby was playing the Beast. He is visually and vocally unrecognizable.

And yet, Dan Stevens created a complex character and acted opposite a live actress on real sets while filming the movie. He wore a grey lycra-suite each day on set. It was covered in sensors and his movements were carefully monitored and detected by computers.

He performed each scene against Emma Watson and was present for her to act opposite to and created the performance in which the animators would use to create the final product. At the end of each filming day, we would go into a small room where every pore of his face was monitored and he would do all the scenes they filmed that day again.

Stevens commented that Watson would join him and they would do their scenes again, just to capture his facial expressions. He was still acting opposite Watson and still performing the scenes.

Like Serkis, he performed every aspect of the character as if he was wearing a suit that looked exactly like the final renderings of the Beast character. How would this performance compare to the actors who perform the Beast character on a stage? Just a thought.

According to Phillip Auslander, a leader in performance and technology research in the field of theatre studies, “Live performance is excluded from copyright protection because of the belief that, as an unfixed mode of cultural production, it cannot be copied and therefore lies outside the economy of reproduction.”

This brushes against motion-capture performance and the question of whose performance it actually is. “From a legal perspective,” Auslander states, “the Gollum problem is one of a series of interrelated scenarios in which digital information derived from a performer is used to create performances, and often performer, with varying degrees of independence from the source.”

Once a digital performance is generated, the digital clone of that performer can “undertake an infinite variety of performances the actual performer never executed.”

This leads to a conversation about at what point does the actor no longer count as the creator.

Does that actor, who provided the movements and persona for the collected data, remain involved in the future manipulation of that image?

The film Rogue One featured Peter Cushing as Grand Moff Tarkin. Cushing played this character decades earlier in the original Star Wars trilogy. Rouge One, whose timeline lands in-between episodes 3 and 4, featured scenes of Gran Moff Tarkin speaking opposite live actors playing new characters.

Now what makes this noteworthy is the fact that Peter Cushing passed away in 1994, 26 years before he appeared in Rogue One.

Industrial Light & Magic/Lucasfilm

Check out this LA Times Article about Rouge One!

His image was re-created and regenerated using archrival footage and computer technology to make it appear as if the actor was available for shooting.

Also in the film is a brief cameo of Princess Leia. Ingvild Deila is the talent credited for Princess Leia, but the image on the screen is identical to the Leia we are familiar with in A New Hope.

Another example of a posthumous performance is Marlon Brando in Superman Returns. Using footage Richard Donner shot in Superman (1978), his face was used in the Fortress of Solitude scene with Lex Luthor where Brando reprised his role as Jor-El.

Within this performance, “there is recent evidence of a similar renegotiation of the aesthetic, ethical, ontological, and epistemological problems of posthumous performance, as well as an engagement with a discourse on-screen acting and technology.”

In this particular case, the scene is constructed in a way in which the filmmakers took “pains to show that the posthumous performance is beholden to and constructed with a kind of reverence around performance details originally recorded by the actor.”

The use of a digital clone of an actor is subject to a rather clear legal analysis. Using the image of a famous person without their permission “would run afoul of both the right of publicity and the Lanham Act,” says Auslander. A production company can reuse digital characters in contexts that go beyond the initial project the image was captured for.

But who owns and controls a synthespian? Who is the author? The performer or the animators?

One thing that is troubling, then, about posthumous performance is the way it challenges or disorientates familiar, taken-for-granted ideas about screen acting as an effect produced by an intentional, present human being” — Lisa Bode

Derek Burrill suggests that “traditional film acting, often characterized heretofore as lacking indirect presence when compared with stage acting, seems ‘live’ when contrasted with the methods used to create digitally enhanced characters.” This supports Auslander's thesis that “liveness is defined historically and is always open to redefinition with the appearance of new technologies.”

Photo by Ryan Garry on Unsplash

Lisa Purse states that there is a “long-standing tendency both within film and broader culture to bracket acting as somehow the least intrinsically cinematic aspect of film.” Purse suggests, “rather than splitting “acting” from digital animation or technology, we might instead imagine a screen performance continuum encompassing all the modes of technological mediation and augmentation of performance.”

So, is a motion-capture performance subject to copyright? If so, how does this enter the conversation about screen acting and live performance?

Do motion capture and posthumous performances have rights? It’s complicated.

One thing is certain though. Motion capture performance should be viewed as a distinct style of performance and should be respected by audiences as such. They are valid and impressive modes of performance and the lack of recognition by the media, the critics, and the fans is a shame.

To close with the same quote from the start, “Apes together strong,” can’t the synthetic and the thespian be strong together? I think so.

Interested in further reading about liveness, motion capture performance, and cinema studies? Here are a few interesting pieces I read in my research-

Auslander, Phillip. Liveness: Performance in a Mediatized Culture. 2. New York: Routledge, 2008.

Birringer, Johannes. “Contemporary Performance/Technology .” Theatre Journal 51.4 (1999): 361–368.

Bode, Lisa. “No Longer Themselves? Framing Enabled Posthumous “Performance” .” Society for Cinema & Media Studies 49.4 (2010): 46–70.

Cram, Christopher. “Digital Cinema: The Role of the Visual Effects Supervisor .” Film History 24.2 (2012): 169–186.

Fleming, David H. “Digitalising Deleuze: The Curious Case of the Digital Human Assemblage, or What Can a Digital Body Do?” Deleuze and Film. Edinburgh: Edinburgh University Press, 2012.

Giannachi, Nick Kaye, and Gabriella. “Acts of Presence: Performance, Mediation, Virtual Reality.” TDR 55.4 (2011): 88–95.

Landay, Lori. “The Mirror of Performance: Kinaesthetics, Subjectivity, and the Body in Film, Television, and Virtual Worlds.” Cinema Journal 51.3 (2012): 129–136.

Manovich, Lev. “Kino-Eye in Reverse: Visualizing Cinema.” Cinematicity in Media History. Edinburgh University Press, 2013.

Popat, Sita. “Missing in Action: Embodied Experience and Virtual Reality .” Theatre Journal 68.3 (2016): 357–378.

Purse, Lisa. “Digital Imaging and The Body .” Purse, Lisa. Digital Imaging in Popular Cinema. Edinburgh: Edinburgh University Press, 2013. 53–76.

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