ABBA, KISS, avatars and hologram images as objects of intellectual property 

In 2022, the world-famous group ABBA announced that it would be touring from 2022 to 2025. In the context of technological evolution and the intervention of artificial intelligence in creativity, the event is not an ordinary concert, but a virtual show with digitized avatars of the group. To create their digital selves, also called “ABBAtar”, the members of the group wore motion capture suits for five weeks, while 160 cameras scanned their body movements and facial expressions. The innovative technology used allows the ABBAtars to take concertgoers back in time, as they present the group exactly as it was in the 1970s.  

Following their example, the rock band KISS sold its catalog, trademark, and intellectual property for over $300 million, then retired to a well-deserved rest, performing its final concert. However, a new one awaits us in 2027. But not with KISS, but with their avatars. What legal framework are they subject to when it comes to intellectual property, considering the currently scarce regulation of artificial intelligence? 

The creation and use of such avatars involves a whole package of intellectual property rights: trademarks, designs, even copyrights. Avatars are not real images (although they may resemble them), but fictional ones, and the closest example they can come to is that of imaginary characters from films and games. Let's take the Super Mario avatar from the popular video game as an example – it is registered as a figurative trademark, the game's graphics are registered as an industrial design, and the concept itself and its implementation are subject to copyright. Under EU law, trademarks representing characteristic movements can also be registered (for example, the "ritual" dances of football players like Cristiano Ronaldo after scoring a goal), so holograms like the ABBAtars are also protected in terms of their typical gestures. 

At this stage, the regulatory framework could manage to protect avatars and holograms by applying something from each branch: 

• Technologies for creating avatars are subject to copyright, and being innovative according to the degree of novelty, inventive step and industrial applicability can also be patented (or at least registered as utility models) 

• The assignment of rights to performers is governed by copyright rules., analogous to the creation of recordings of songs and albums (imagine playing a gramophone record, but not only sound, but also an image coming out of it)  

• The typical avatar face and holograms is new and original and may fall within the scope of industrial design 

• The characteristic movements (such as dances, ways of saying words, typical looks, etc.) are considered trademarks 

• The brand that creates such avatars and holograms, should be protected as trademark and in class 9 from the Nice Classification, covering goods such as apparatus and instruments for scientific or research purposes, audiovisual and information technology equipment, etc. This can protect against infringement of rights to objects "branded" with the brand.  

As technology advances and its increasing role in our lives increases, more and more challenges may arise, leaving the door wide open de lege ferenda to the era of Web 4.0*. After all, from the use of landlines to the creation of holograms from smartphones, only three decades have passed - which is extremely insufficient to establish permanence in the regulatory framework, especially when the objects it regulates have the quality of "blitz progress". 

*The technological evolution of the 21st century is unofficially tracked according to the Web scale. By tracking it, we can witness the complication in the regulation of intellectual property. Simply put, imagine the basic interface of Windows XP, phones with antennas and fax machines – this is the embodiment of Web 1.0. The next step – 2.0, appears with the advent of social networks at the beginning of the 21st century (e.g. MySpace, Skype, YouTube) and the demand for the creation of smart technologies. In this way, wider accessibility is guaranteed due to the spread of the Internet. And after its establishment as an integral part of our everyday lives, we lived in the era of Web 3.0 – massive databases, increasingly complex queries and increasingly accessible information from the point of view of sharing and connecting. As they say – everything is just a click away. Even Web 4.0. However, surfing there, we will be venturing into the ocean of virtual reality, and there is a danger of drowning if events continue to outpace the fact of their normative coverage.

We shared our thesis on the current regulation of some aspects of Web 4.0, and practice will show whether it will be able to cope with the immortalization of our favorite artists and the breathing of eternal life into legends from George Michael to Lili Ivanova. 

Images: flickr and MetalSucks