right-of-publicity
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Activision fails to have No Doubt lawsuit dismissed
If the whole West, Zampella and Activision kerfluffle is no longer satisfying your desire for daily litigation drama, we'd like to point you to an old friend we haven't heard from in a while. We speak, of course, of the No Doubt vs. Activision lawsuit, in which the former accused the latter of infringing on its right-of-publicity by allowing their in-game Band Hero avatars to be used to sing other recording artists' songs in the game. According to the LA Times, Activision recently attempted to invoke freedom-of-speech protections under the 1st Amendment to have the case dismissed out-of-hand -- a tactic shot down by Los Angeles County Superior Court Judge Kenji Machida. Though Activision has the option to appeal this decision, it looks like the folks from No Doubt might have a chance at taking back their intellectual property and forming a new studio under EA. Wait -- we mixed them up again, didn't we? Yeah, we did.
LGJ: Come As Your Avatar, Smells Like Lawsuit? Nevermind
Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games: The well publicized dispute over the use of an avatar of Kurt Cobain in Guitar Hero 5 has provided a good backdrop to discuss the 'right of publicity.' For anyone who doesn't want to take time to read the stories, here's a summary. Guitar Hero 5 includes Kurt Cobain as an unlockable playable avatar, much like previous titles in the series have done with other rock stars. Shortly after release, Courtney Love expressed her distaste at the use of Kurt, and Activision has stated Love signed an agreement allowing the use. Since then, other former Nirvana members have stated they think the avatar should be limited to performances of Nirvana songs. Kurt's in-game likeness is governed by the part of the law called the 'right of publicity,' also called the 'right of personality' or 'personality rights.' In the US, that is unfortunately a complicated subject. Unlike other intellectual property rights, the right of publicity is governed by the states, not federal laws. So, unlike copyright or trademark, the exact rules of the right of publicity game change in every state. This, of course, makes the topic difficult to discuss and analyze, but there are some general theories about the right that can be discussed on a universal level.
LGJ: The Flash game quandry
Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games: We're all somewhat familiar with the endless stream of Flash games featuring some famous person: Presidential Paintball, Super Obama World, Whack Britney Spears, Paris Hilton Jail Escape, etc. An interesting question was posed to me the other day about these games: Is there a quarrel over the right of publicity related to Flash games? Obviously, retail games featuring certain public figures, such as professional athletes, are paying for the use of those celebrity likenesses. Flash games, however, are positioned much differently, and it's one of the more complex relationships between differing legal theories I've seen in the gaming sphere.While we've discussed the right of publicity before, it's worth reiterating that the concept is basically the equivalent of a trademark for a famous person's likeness. Think of it like a brand name helping to sell a product. A lot of people will buy a game just because it's made by Nintendo. Similarly, a lot of people might buy a game that appears to be created or endorsed by someone; be that a particular game developer or a celebrity. How many people initially bought Madden Football because of Madden's attachment to it? Probably quite a few. There's certainly a good strategy in using celebrity to sell a product.
