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| Image: Livemans.com |
Earlier this month, the New York County Supreme Court dismissed a lawsuit by Lindsay Lohan challenging the use of her image/ likeness in a video game by the producers of “Grand Theft Auto”. The American actress had accused Take-Two Interactive Software Inc., (owners of the game developers Rockstar Games) of violating her privacy rights under New York Law by basing the character 'Lacey Jonas' in GTA V (the game) on her image from a photograph of her. It was alleged that the character appropriated her physical features: 'clothing', 'shoulder-length blond hair', 'voice' and 'signature peace pose' from the said picture. Although most people playing the game would have probably assumed the character was a general parody of young Hollywood divas, Lohan’s lawyers argued otherwise.
Nevertheless, a panel of five judges in the Manhattan Appellate Division dismissed the case on 1 September 2016, ruling that the company did not use her actual “name, portrait or picture” and therefore did not violate her right to privacy. The judges also dismissed the actress' claim that her image was used for the game's advertising because the game’s character was used, and not an actual photograph of the actress. The Judges further stated: "This video game’s unique story, characters, dialogue, and environment, combined with the player’s ability to choose how to proceed in the game, render it a work of fiction and satire.” (via Evening Standard)
Meanwhile, the company reportedly earned $1 billion in its
first three days and has shipped more than 60 million copies to become one of
the best-selling video games. In a highly digital world, where celebrities
invest so much into building their image, it is only fair for the law to
provide the machinery for protection against unlawful use or misappropriation
of such image to endorse brands or boost sales of a product or service. The
right of Publicity (also called Image Rights or Privacy in some jurisdictions)
exists to provide this. However, just as with every law, there are requirements
that must be met and there are also exceptions.
The ruling in the Lohan's case can be
distinguished from the ruling of the court in the Gwen Stefani and No doubt case
against Activision
which was settled in 2012. The band had contended that Activision's Band Hero
game featured their 'unauthorized likenesses in digital avatar form.' There was
also the possibility to unlock special features allowing the player to
manipulate the avatar of Gwen Stefani and her band mates and get them to
perform songs. Although No doubt had executed a contract with Activision, the
band claimed that the company had exceeded the rights granted therein, by
featuring the band performing 60 songs they had never performed in reality and
had not consented to perform in the game. Activision counterclaimed that No
doubt was actually in breach of contract and argued that its use of the band's
likenesses was fair because the game was 'transformative'. The band
disagreed with this, stating that the 'motion-captured
recreations' were 'too realistic'
to be transformative. At first, the court agreed with Activision and
affirmatively answered the question whether contractual disputes over video
games implicated the First Amendment. However, this position was reversed by the
California State
Appeals Court, which held that while the video games were protected by Free
Speech, the First Amendment did not operate to bar a right of publicity in this
case. The Court further stated that:
"... That the avatars
can be manipulated to perform at fanciful venues including outer space or to
sing songs the real band would object to singing, or that the avatars appear in
the context of a video game that contains many other creative elements, does
not transform the avatars into anything other than exact depictions of No
Doubt's members doing exactly what they do as celebrities." (via Hollywood Reporter)
Although it has been argued by many that the No
doubt Case was more of one of breach of contract, the decision of the court and
determination of the features and effects of transformative works are
applicable to Publicity Rights cases. What seems to be clear in right of
publicity cases is that the use of a person's image may only be acceptable
where the likeness used in the game or devise is altered enough to qualify as
an entirely new creation i.e. it must be sufficiently transformative. This test
was adopted by 9th U.S. Circuit Court of Appeals from the State Supreme Court
in deciding misappropriation of image and likeness cases.
While in several countries, such as Nigeria,
there is no clear Right of Publicity, an aggrieved celebrity may still be able
to make a case in passing off where their image or likeness is used to promote
goods and services; as well as trademark infringement, where celebrities have taken the extra-step of registering their names as trademarks in several
classes of goods and services. Actions under copyright law may also arise where
pictures owned by celebrities are unlawfully reproduced, published or
communicated to the public on or unapproved mediums. However, actions under
these areas of law are subject to several requirements for the name, image or
likeness in question to receive protection and to be successful in an action
for infringement. Nevertheless, it is advisable for developers of games
to take into cognisance these rights and to desist from including the real
names, portraits or pictures of celebrities in their games. While people may
think that the absence of publicity laws in their country of operation may give room to include whatsoever they wish,
it is still advisable to use distinct names, transformative cartoons or images
that may qualify as new works such as in the Lohan's case.
Therefore, there is a dire need to review the current
laws to ensure they take into consideration the advancements of technology and
new media and provide for actions not contemplated by the Copyright or
Trademarks Acts. In 2015, Nigeria enacted the Cybercrime Act[1] to
address the issue of Cyber security as well as a draft copyright bill[2] which
takes into cognisance some digital realities of the information age. However, there is still room for improvement. The entertainment industry in Nigeria is growing every day, especially as regards merchandising, ambassadorship and sponsorship deals. It will be good
for there to be a specific regime that protects the rights of celebrities to the use of
their images in various media and forms.
© September, 2016 by LAW Afolabi
© September, 2016 by LAW Afolabi
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