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Legality and Morality Surrounding CGI James Dean

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Since my coverage of the Olivia de Havilland case against FX, I’ve become quite interested in intellectual property law and its modern and historical applications in the film industry. So I found it fascinating when, a few weeks ago, the trade papers announced that a newly-formed movie studio, Magic City Studios, would cast a CGI version of James Dean in an upcoming film about the Vietnam War. It prompted a backlash online, which only seemed to embolden the filmmakers. Worldwide XR, which holds the rights to 400 celebrities, came out with a list of the next classic Hollywood stars who could be “reincarnated” via CGI technology, a list that included Bette Davis and Ingrid Bergman.

The inclusion of Bette Davis in such a list got me thinking about the ethics and repercussions of this technology for actors. Bette Davis was among the most vocal advocates for actors’ rights in Hollywood. In 1937, she sued Warner Bros to get out of her contract, claiming that their contract system was an abuse of studio power over actors’ careers. She ultimately lost the case, but Olivia de Havilland picked up the torch and brought almost the same suit in 1943. De Havilland won, and it changed the industry forever, giving actors more agency over their careers.

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Bette Davis leaving for a London court in 1937, where she sued Warner Bros in a contract dispute.

Most of the attention surrounding James Dean’s CGI recreation has been around the legality of using his image, rather than the legality of resurrecting a deceased actor for a part that could be played by a living, paid one. Right of publicity and intellectual property have been argued over in California courts for decades–when Bela Lugosi’s heirs sued Universal Pictures for using images of Lugosi without their permission, an appeals court ruled that heirs have no right to a deceased relatives’ likeness, and that their image is fair use. However, in 1985, California passed the California Celebrities Rights Act, which created an inheritable right to publicity, valid for 50 years following a person’s death (it has subsequently been extended to 70). Due to this ruling, James Dean’s family owns the right to his likeness. The filmmakers have been granted permission from the family to use it, and they are within their full legal right to do so now.

However, to my mind, the larger issue is what this means for working actors. Resurrecting dead actors, regardless of technical legality, could turn into a problematic and even destructive situation for Hollywood, as it would open the door to CGI interpretations by deceased celebrities when filmmakers don’t want to pay someone for his or her work. In this particular case, the filmmakers might be getting around this sticking point by paying an actor to voice James Dean. But voice actors are generally paid per job, and it is significantly less than an onscreen actor’s salary. They can be union or non-union, allowing the filmmakers to take advantage of a non-union voice actor’s work, paying far less than they would to hire an onscreen actor affiliated with SAG-AFTRA.

In addition, the filmmakers run into problems with SAG-AFTRA regulations when choosing to use this technology. Union rules require that every effort must be made to employ a union member before extending a hiring search to non-union members (which, presumably, would include the dead). The Taft-Hartley Act, passed in 1947, allows filmmakers to hire non-union members for roles that cannot be filled by an enrolled union member. The CGI image of Peter Cushing in Rogue One: A Star Wars Story is an example of this rule in practice. The character has been so indelibly linked with Cushing over the decades that a CGI recreation seems almost a requirement. Also, actor Guy Henry provided the character’s body with Cushing’s head superimposed, perhaps allowing George Lucas some extra legal protection. There hasn’t been any indication thus far that the same will happen with James Dean.

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Peter Cushing in CGI.

But there are strict rules for hiring non-union actors for a role that could be filled by a dues-paying member, per the Taft-Hartley Act. From the SAG-AFTRA website: “Taft-Hartley reports must be completed and submitted directly to SAG-AFTRA by the signatory producer or casting director within 15 days from the performer’s work date.” Following those rules, as James Dean is not a union member (having been dead since 1955), he would have to be cleared for hire via a Taft-Hartley report.

It all sounds rather ridiculous. Industry law has not yet caught up with CGI recreation, which would have been considered impossible just a few short years ago.

SAG-AFTRA president Gabrielle Carteris gave her opinion in an interview with Variety:  “From the perspective of the actor, it subverts the creative process, reduces opportunities to work and is an attack on creativity. I also challenge those who say this is the only way the creator’s vision can be realized.”

It will be interesting to see what comes of this film, and whether or not my fears about abuse of CGI technology will come to pass. Technological advances in the film industry have always stoked lots of worry on the part of the public and the industry alike. But this particular advance doesn’t just feel new and revolutionary, it feels dangerous.

MR. SMITH GOES TO WASHINGTON (1939) on Women in Political Life

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Last night, I was pleased to see that KQED, my local PBS affiliate, was showing Mr. Smith Goes to Washington for their weekly Saturday night movie program. I have always loved this film, and deeply respect the emotional integrity and intelligence it brings to the screen.

It’s hard to imagine that at one time, Mr. Smith Goes to Washington was very subversive and controversial. Today, its message of resilience is so universal that any overt political message is overshadowed to the modern eye. But when Mr. Smith Goes to Washington premiered at the National Press Club in Washington, many senators were present and a large group of them walked out, offended at the governmental corruption the film depicted. Joseph P. Kennedy tried to prevent the film’s release in Europe, as he felt it would encourage the Axis powers. At the time of the film’s release, government had not yet acquired the reputation of corruption that we now take so for granted. Mr. Smith Goes to Washington changed that to a large extent.

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The film’s influence on the decline of the studio system is well-documented. United States v. Paramount Pictures et al struck down the studios’ practice of block booking (wherein a theater had to purchase 5 films to show 1), because so many theaters opposed to purchasing Mr. Smith Goes to Washington. Its foreshadowing of the McCarthy era, and the political control of media outlets and the information they disseminate to the public, has, deservedly, been analyzed many times. This is part of Mr. Smith Goes to Washington‘s lasting legacy. What I want to talk about is something that is not often discussed–the complex and subtle commentaries on women in politics that exist within the film.

In the Roosevelt era, women were just beginning to gain a foothold in American political life. The film’s references to “96 men” when referring to the makeup of the Senate (Hawaii and Alaska were not yet states), is not an accurate picture of the Senate in 1939. Mr. Smith Goes to Washington was conceived in an election year where a number of high profile races were taking place, one of which was an Arkansas race between Republican C.D. Atkinson and Democrat Hattie Caraway. Caraway, the incumbent, had been the first woman ever elected to the Senate. Much like the fictional Jefferson Smith, she had been appointed to the Senate (following her husband’s death), then was reelected in her own right the next year. In spite of tough opposition in 1938, she won another reelection with a landslide 89.6% victory over Atkinson.

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Senator Hattie Caraway in her office.

Senator Caraway’s presence is ignored in Mr. Smith Goes to Washington, perhaps for several reasons. While the movie was filmed in early 1939 after Caraway’s victory, the script was written prior to the election. The screenwriters, Sidney Buchman and Myles Connolly, likely did not want to predict the outcome. And even after her victory, pointing out a woman in the Senate may have felt too political, regardless of the fact that Caraway was indeed in the Senate. Or, perhaps, they were trying to create a completely unrecognizable governmental body.

Whatever the reason for leaving Senator Caraway out of the picture, a true female political force is indeed revealed in the movie, through the character of Saunders, played to perfection by Jean Arthur.

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Saunders, whose first name we learn is Clarissa, is Jefferson Smith’s fast-talking legal secretary. She is a bit cynical and jaded, a true Washington insider, but maintains a sense of humor. Whip-smart and experienced, she scoffs at the newbie Jefferson Smith, who has been appointed from some unnamed western state when the previous senator died, and she lectures him on congressional procedure when he gets too optimistic about his bill to open a boys camp at Willet Creek. Saunders is respected by men, and is considered their equal. At one point, Smith pries her first name out of her and he lets it sit for a moment, repeats it, then goes back to calling her Saunders. When he mounts his famous filibuster against the Willet Creek Dam Project at the end, she coaches him from the gallery, walking him through the entire process. She is smarter than anyone else in the room, and more strategic. It is clear that in a just world, she would have been the one named replacement senator.

In Jean Arthur’s gutsy characterization of Saunders, we see a strong, intelligent woman whose gender relegates her to work as a political secretary rather than a politician, and who directs a marathon filibuster from the balcony to which she is relegated as a bystander. The characterization can be read not only as a commentary on the general situation of women in the United States, but also as a call for women to be accepted as full and participating members of public life.

The film ends ambiguously, with Jefferson Smith taken out of the Senate chamber after fainting, and the corrupt Senator Paine confessing to his crimes. I like to think that perhaps following this ambiguous ending, for Saunders too, there is a political future.

This last midterm election, the United States elected a congressional body with the highest percentage of women in history. Somewhere, Hattie Caraway is cheering, and Saunders is finally no longer on the sidelines.

 

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