Video Game Cases May Break New Right Of Publicity Ground

Note: This blog is cross-posted from Law360.com with permission of Portfolio Media, Inc.

A lawsuit filed in California Superior Court has taken video game right-of-publicity cases beyond college athletes and Hollywood celebrities. Former Central American despot Manuel Noriega, from his prison cell in Panama, is suing Blizzard/Activision over Activision’s portrayal of Noriega in its highly successful game “Call of Duty: Black Ops II.”

Manuel Noriega ruled Panama in the 1980s as a military dictator, and has been in prison in the United States, France, and Panama since 1992 for drug smuggling, money laundering and the murder of political opponents. “Black Ops II,” released in 2012, is the latest installment in Activision’s military first-person shooter series “Call of Duty,” and netted over $1 billion in sales worldwide in its first few weeks on the shelves.

A character in the game bears Noriega’s likeness and, like the real Noriega, is portrayed as assisting the American CIA as an informant. But in one of the game’s missions, the Noriega character — referred to by name during his cameo appearance — betrays the CIA, and the user, through his Special Forces avatar, is tasked with capturing him. Noriega, now 80, claims that Activision used his name and image in “Black Ops II” to make money, and that the game’s portrayal harmed the deposed dictator’s reputation.

In his four-count complaint Noriega claims that Activision’s use of his image and likeness violates, among other laws, California’s right-of-publicity statute, and damages him because he is portrayed as “an antagonist and … as the culprit of numerous fictional heinous crimes, creating the false impression that [Activision is] authorized to use [his] name and likeness.”

Specifically, Noriega complains that he is portrayed in “Black Ops II” “as a kidnapper, murderer and enemy of the state.” Noriega alleges that the use of his likeness “heighten[s] the realism” of the game which “translates directly into heightened sales for” Activision, and as a result Activision “receive[d] profits they would not have otherwise received.” The former despot claims he suffered reputational harm and denial of monetary benefits and profits associated with the use of his persona.

The Developing Trend: Transformative Use

Noriega’s suit comes on the heels of a similar case filed in New York State Supreme Court just a few weeks ago: Actress Lindsay Lohan filed a lawsuit against Rockstar Games and Take Two Interactive over an alleged digital doppelganger in Rockstar’s “Grand Theft Auto V,” 2013’s billion-dollar addition to the long-running “GTA” franchise. Lohan claimed that a minor character in the game, named Lacey Jonas, is an “unequivocal” reference to her, appropriating Lohan’s image, voice, signature clothing and accessories, and troubled relationship with fame and substance abuse, in violation of New York’s privacy statute. Lohan alleged that the inclusion of the Lacey Jonas character was “solely to attract customers and generate sales.”

While video game publicity cases have become more prevalent, they been around since at least 2006, and over the last several years a sliding scale of liability seems to have come into focus. There is no question that these are complicated cases: They involve the intersection of publicity, trademark, trade dress and First Amendment issues. But much like the trend in copyright fair use jurisprudence, courts are tending to focus largely on whether and to what degree the game’s use of a real-life person’s name or likeness in a digital world is “transformative.” That is, the more transformative the use of the public figure’s image or likeness, the less likely the user is to be found liable.

Sufficient Transformation: Kirby v. Sega of America Inc.

One of the early video game cases from 2006 demonstrates one far end of the transformativeness spectrum. In Kirby v. Sega of America Inc., the California Court of Appeals held that a video game character that allegedly appropriated certain attributes of singer Kierin Kirby of the 1990s band Deee-Lite for use in Sega’s Space Channel 5 video game was transformative and therefore protected by the First Amendment. Space Channel 5 featured Ulala, a space-age news reporter depicted as an anime-style character.

Kirby claimed that the character’s physical traits and catch phrase (i.e., “ooh la la”) were taken from her distinctive persona as the lead singer of Deee-Lite. The court held that, while Ulala bore similarities to Kirby, there were also significant differences, including clothing, dance moves, and the fact that Ulala was not a musician, but rather a futuristic news reporter in a fanciful setting. These differences were creative and transformative enough to warrant First Amendment protection, and to bar Kirby’s publicity claim.

Faithful Recreations: No Doubt v. Activision Publishing Inc. and the College Sports Cases

On the opposite end of the transformative use spectrum are several cases where courts have held that the digital depictions of real-life musicians and athletes did not warrant the same protection as that accorded in Kirby. In the 2011 case of No Doubt v. Activision Publishing Inc., popular rock band No Doubt sued Activision, publisher of the concert-simulation game “Band Hero,” for violating the band members’ publicity rights by allowing users to manipulate the No Doubt avatars’ voices and to synch the avatars to songs of other artists — uses that fell outside the scope of Activision’s license with No Doubt.

The California Court of Appeals held that Activision was unlikely to succeed on the merits of a First Amendment defense because, unlike in Kirby, Activision’s use of the No Doubt band members’ likenesses was not transformative. Rather, the “computer-generated recreations of the real band members” were “painstakingly designed to mimic their likenesses” and the avatars were simply engaging in “the same activity by which the band achieved and maintains its fame.”

College sports video game cases have reached the same result as No Doubt. In particular, two decisions from 2013 held that the First Amendment did not insulate unlicensed use of the images and likenesses of college football players in Electric Arts’ “NCAA Football” video game series.

In Hart v. Electronic Arts Inc., EA had copied the plaintiff’s real-life physical features, clothing and accessories, and biographical data, and the Third Circuit found that the virtual Ryan Hart “does what the actual Ryan Hart did while at Rutgers: he plays college football, in digital recreations of college football stadiums.” Even though the game contained other creative elements unrelated to the player avatars, and even included a feature that allowed users to customize the players’ appearances, the court held that, in order to benefit from First Amendment protection, an “artist depicting a celebrity must contribute something more than a ‘merely trivial’ variation” to the celebrity’s likeness as opposed to just in ancillary elements in the game.

Similarly, in Keller v. Electronic Arts Inc., former college football players sued for violation of their publicity rights arising from their appearance in NCAA Football. The Ninth Circuit allowed the suit to proceed, rejecting EA’s claim that the video game was sufficiently transformative to warrant First Amendment immunity. The court explained that the work must add “significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation.” As in the No Doubt case, the court held that “EA was alleged to have replicated Keller’s physical characteristics” and “users manipulate the characters in the performance of the same activity for which they are known in real life — playing football in this case.”

Conclusion

While both the Noriega and Lohan cases are in their infancy, it is not too soon to see that they likely fall somewhere in between the extremes of Kirby and the No Doubt/EA cases, and could potentially shed light on a grey area of right-of-publicity law. As such, they could ultimately become noteworthy “test” cases to watch, assuming they produce any substantive court decisions.

But until such a time as the California or New York courts make any rulings, it is worthwhile for video game creators, developers, and publishers to note, particularly in light of the Noriega lawsuit, that it is not just Hollywood celebrities and athletes who are concerned with the commercial use of their image and likeness. Right or wrong, good or bad, some unanticipated and even notorious public figures could try to capitalize on what they deem to be unlicensed uses of their personas, even to the point of seeking to collect damages for reputational injuries and “lost profits” in the United States all the way from a South American prison.

In the video game world, creative and legal personnel alike should expect the unexpected when incorporating public figures into games, and err on the side of either obtaining clearances or licenses from those people (or their representatives), or making their depictions in the digital world at least somewhat creatively transformative. It is important to note, however, that these types of claims will be analyzed and judged on a case-by-case basis, and that experienced counsel can help to devise a roadmap for avoiding and addressing potential problems according to a particular client’s goals and level of risk tolerance.

—By Scott J. Sholder, Cowan DeBaets Abrahams & Sheppard LLP

Scott Sholder is an associate in Cowan DeBaets Abrahams & Sheppard’s New York office.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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