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.

The right of publicity stems from the theory that any person should have the right to control how their likeness is used by others for commercial gain. In that way, it is similar to a trademark. People may associate a person with quality or other attributes much like they associate a brand name, and thus use of that person's likeness to sell a product ties the two together. This right almost requires that the person be famous. For example, there are many people named Michael Jackson, but only the recently deceased Michael Jackson would likely be able to defend a right of publicity to the name. It is also worth noting that courts will generally differ to use of the name by someone who actually has that name. For example, if another person named Nolan Bushnell opened 'Nolan Bushnell Automotive' or some similar company, their use of their own name would be a defense to an action by the famous Nolan Bushnell in many jurisdictions.

Interestingly enough, the spectrum of personality rights is fairly broad, and not all states grant those rights in the same way. For example, not all states grant continued publicity rights after death. When a person is alive, they hold their own right of publicity for the most part, but passage of that right after death requires either a statute or case law to support the theory. In fact, only 28 states officially recognize the right of personality, with Indiana having what is generally regarded as the greatest protection, extending a full 100 years after death. California and New York are also considered to have strong rights of publicity.

In addition, aspects of the personality beyond the physical likeness, name, and voice may also be protected by the right of publicity. Indiana includes things as far reaching as the signature, mannerisms, gestures, or even distinctive appearances. In two different cases, California held that robots infringed on the rights of publicity for Vanna White and George Wendtand John Ratzenberger.

So what about this Activision issue? Courtney Love is, as far as I understand it, the holder of the right of publicity for the estate of Kurt Cobain. Of course, if what Activision says is true and they have a license to use Kurt's likeness in the game, then the contract's terms will govern whether what Activision has done is within their license. If not, then it is almost certain that Courtney Love will be able to bring an action within a jurisdiction that will be favorable to her position, holding the rights to Kurt's license. I've seen a number of comments stating that they think the former band members' position is reasonable, which it is unless the license agreement says otherwise. That's not to say that without a license, Activision would be able to use Kurt's likeness for Nirvana tracks; it's almost certain the license for the music contains no such provision.

I do find it rather curious that this issue is treated differently for Kurt than other deceased artists. Jimi Hendrix was in World Tour without criticism. Is it because Kurt's death is far more recent that people feel differently? Is this just a by-product of Courtney Love's outburst more than anything else? It's difficult to say. The public's reaction, however, does little to change the actual rights involved. Either Activision had a license or they didn't, and if they did not, it would be interesting to hear the legal theory they're claiming as to use of Kurt's likeness. It's entirely possible that they do have a contract, and nothing will come of this beyond this outburst.

[Image Credit: quinn.anaya; CC BY-SA 2.0]

Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc., where he is a board member of the Dallas chapter. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

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