In July 2014, Lindsay Lohan sued Take-Two Interactive and Rockstar Games, claiming that Grand Theft Auto V featured a character who is allegedly based on the Mean Girls actress. According to the suit, filed in the New York Supreme Court, the cover of the game depicts a bikini-clad woman who bears a striking resemblance to LiLo. And the game itself apparently consists of more similarities, including the fact that the character runs from paparazzi, takes cover in the Chateau Marmont and incorporates Lohan's "image, likeness, clothing, outfits, [Lohan's] clothing line products, ensemble in the form of hats, hair style, sunglasses [and] jean shorts."
Also in July, former Panamanian dictator Manuel Noriega filed suit in California Superior Court against Activision Blizzard Inc., the makers of Call of Duty: Black Ops II, for using his likeness without permission. According to the complaint, Activision depicted Noriega as "a kidnapper, murderer and enemy of the state," (the audacity!) and the makers implied that he was "the culprit of numerous fictional heinous crimes, creating the false impression that defendants are authorized to use [his] image and likeness."
Lohan's and Noriega's suits were filed in two different states, and because of this, the applicable laws vary a bit. Lohan's battle is ongoing while Noriega's has been dismissed. One involves a celebrity, and the other a political figure. On the face of it, these two suits don't have all that much in common. The thread that connects them both –- and most lawsuits involving the use of a person's likeness in a video game -– is the right of publicity.
WHAT IS IT?
In general, the right of publicity grants individuals the authority to control the commercial use of his or her own name and/or likeness. This right means that you can't create an ad for new basketball shoes with Michael Jordan in it unless he's given his consent. Simple enough!
Noriega's Call of Duty likeness
Naturally, there are a couple of considerations that make it a little more complicated. First of all, as previously mentioned, right of publicity laws vary from state to state. A number of states have passed specific statutes regulating the right of publicity; others just have common law rights (meaning precedent established by case law); some have both; and a handful have neither.
In New York, where Lohan's suit was filed, the right of publicity law is codified as part of its Right of Privacy statute and is primarily covered in two sections (Section 50 and Section 51). As is pretty typical, Lohan sued with reference to both sections. Section 50 is much shorter than Section 51, basically just defining a right of publicity violation as a misdemeanor. Section 51, on the other hand, provides protection for a person's name, portrait, picture and voice. To constitute a violation of Section 51, a use of a person's identity must be: within New York state, for advertising or trade purposes and without written consent.
Compare that to California, where Noriega brought suit. California not only offers a statutory right, but also offers a common law right. California's statutory right is fairly similar to New York's, protecting against the unauthorized use of a person's name, voice, signature, photograph or likeness for purposes of advertising, selling or soliciting. The common law right, however, is much broader and requires a person bringing suit to show that the use of his or her identity was for another's advantage (commercially or otherwise), it was without consent and there's a resulting "injury." So, unlike the statutory right, the common law right is not limited to a commercial use of a person's identity. Oftentimes, a lawsuit in California claims a violation of both the common law and the statute.
And second, as with most things involving the law, there is a heavily relied-on defense to a right of publicity claim. Gaming companies that are sued related to a right of publicity often claim First Amendment protection in the use in question.
When a court is faced with a First Amendment defense to a right of publicity claim, the "transformative use test" is applied to determine whether or not a company's First Amendment rights trump a right of publicity. Whoa, legal jargon! Not to worry: All this really means is that a court is looking to see if there are substantial "transformative" elements added to the use of a person's likeness instead of just the mere depiction of a person. In essence, when "a product containing a celebrity's likeness is so transformed that it has become primarily the defendant's own expression rather than the celebrity's likeness," the First Amendment is a legitimate defense to a right of publicity claim.
WHAT'S THE ARGUMENT?
On one hand, a person should obviously have the right to control the use of his or her own likeness. In the same way that a brand can protect its name with a trademark, a celebrity or public figure should be able to limit where his or her likeness is used. Their "brand" is their identity.
And when there's no change –- or not enough to be deemed "transformative" –- to a celebrity's likeness, courts tend to agree. In one case, the Court of Appeals of California for the Second District found that Band Hero's use of avatars that looked like No Doubt band members was not transformative. The court reasoned that the graphics and other elements in the background were not enough to transform the avatars into anything other than "literal recreations of the band members."
But the First Amendment is a pretty huge trump card, and courts are apt to tread lightly when it comes to limiting the First Amendment's protection of artistic and creative works. In 2006, a California court held that the First Amendment protected Sega's use of attributes from singer Kierin Kirby for the character Ulala (from Space Channel 5). The court pointed out, "The freedom of expression protected by the First Amendment exists to preserve an uninhibited marketplace of ideas and to further individual rights of self expression." And it went on to note, "Video games are expressive works entitled to as much First Amendment protection as the most profound literature."
WHY SHOULD I CARE?
One reason to care is that lawsuits like the ones brought by Lohan and Noriega have potential First Amendment implications. These cases will often ask a court to consider whether or not using someone's likeness in an expressive work like a video game should qualify for First Amendment protection. And if and when a court says that certain uses do not qualify for said protection, the argument is often made that free speech is being stifled.
As if that's not enough, maybe you care simply because you're involved in the creation of video games. If you're in this group, it's definitely worthwhile to know what can be expected before you decide to incorporate a public figure or celebrity likeness into a game.
And finally, you might just care because you buy and play video games and want to know if any of your beloved characters could be at the center of a lawsuit. You know, caveat emptor and all.
WANT TO KNOW MORE?
And why wouldn't you? If you want to know whether or not your state has a statute and what it says, rightofpublicity.com is the place to go. Or, if you're interested in the general do's and don'ts related to using the name and likeness of another, the Digital Media Law Protect has you covered.
[Image credits: Rockstar Games (GTA V); Activision (Call of Duty, Band Hero)]
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