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Image Rights in Videogames
One of the reasons Activision failed the “transformative” test in the No Doubt case was that the court held that the motion-captured re-creation of Gwen Stefani was too “realistic” to qualify.
Indeed, Judge Sidney Thomas, dissenting in the Keller case, gave this warning: “The logical consequence of the majority view is that all realistic depictions of actual persons, no matter how incidental, are protected by a state law right of publicity regardless of the creative context. This logic jeopardizes [sic] the creative use of historic figures in motion pictures, books, and sound recordings”.
For now, the safest route for games developers has to be to try and negotiate a licence to use the relevant image. If that isn’t possible, then advice should be sought to understand the potential risk and exposure.
Position in the UK
In the UK, the concept of an individual having absolute “image rights” does not exist. This means that individuals do not have a clear right to control all commercial use or exploitation of their image, voice or likeness. Any remedy they might have for infringement of these rights comes from a jumble of statutory and common law causes of action, none of which is particularly satisfactory. The most common causes of action would probably be:
To bring a successful libel claim, the individual must establish that the use of his/her image is defamatory. There is no single, definitive judicial interpretation of what constitutes something being defamatory, but the generally accepted test is whether it tends to lower the claimant in the estimation of right-thinking members of society generally, or is likely to affect a person adversely in the estimation of reasonable people generally. It must also cause or be likely to cause serious harm to the reputation of the individual.
Taking the Noriega lawsuit as an example, it might have been difficult to argue that Manuel Noriega’s reputation had been damaged, given his current residency in a Panamanian jail cell. However, this is less clear cut where the subject is more divisive: Jonas Savimbi was called a “freedom fighter” in the 1980s and welcomed to the White House by Ronald Reagan; the New York Times subsequently described him as “a warlord, ruling by machete and gun, who is credibly blamed for the massacre of civilians”. On this basis, if a claim was brought in English law, Activision might invoke the defence available where the implication was either substantially true, or was a statement of opinion which the defendant honestly held.
An individual could claim that authorised use of their image constitutes "passing off" – where a commercial entity either tries to pass off their goods or services as another's or falsely implies that another has endorsed their goods or services taking advantage of that person's brand, reputation or goodwill.
As an example, the ex-Formula 1 racing driver Eddie Irvine brought a successful claim against Talk Radio (now TalkSport) when it doctored a picture of him using a mobile phone by digitally removing the phone and replacing it with a Talk Radio-branded radio, then distributed this image in promotional materials. Eddie Irvine sued Talk Radio on the grounds that it had passed off its radio station as having been endorsed by him. The courts upheld his claim and awarded him damages equivalent to a “reasonable endorsement fee” that he would have been able to charge in order to endorse the station in this way at the time. The court held that it was immaterial that the image was not genuine and was clearly a joke. Rihanna won a similar case against Top Shop, which had been using her image on T-shirts, on the same basis. In this case however, it would be far harder for Savimbi to show that his (in his view, negative) depiction in a computer game in a historical setting would lead viewers to believe that he was endorsing the game in question.
A large number of celebrities have registered trademarks for their names, and use of these (or names which are confusingly similar) without permission could constitute trademark infringement (see, for example, the case brought by Lady Gaga against Mind Candy in relation to its release of “The Moshi Dance”, a song sung by cartoon character “Lady Goo Goo” which bore a resemblance to Lady Gaga’s “Bad Romance”) and her trade mark for “LADY GAGA”, which formed the basis of her claim.It’s also possible that in some circumstances the use of an unnamed image of a person in a game could be a trade mark infringement. Whilst it is not possible to register a general trade mark in respect of an individual's image, some individuals have registered particular photographs or iconic images of themselves as trade marks in the UK and EU. If the images used in the game closely resembled any such image then this could potentially constitute an infringement of the trade mark, especially if the goods and services for the registration included videogames, or if the use in the game was likely to take unfair advantage of, or be detrimental to, the trade mark’s character or reputation. For this reason, sports games for example, need to ensure that they have the necessary rights to use sport stars’ likenesses in their game. Note that trade marks like this need to be actually used in commerce in order to not be vulnerable to revocation; a number of these sorts of “image based” trade marks for celebrities tend to end up abandoned for this reason; for example, the trade mark registration for Alan Shearer’s face, registered in 1998, and later abandoned.