Stacy Allen Speaks: The Good, The Bad, And The Ugly: Unpopular Celebrities And The Right Of Publicity

by Jackson Walker

In retrospect, the victories won by former college football stars in their right of publicity lawsuits against Electronic Arts and its hugely popular NCAA Football videogame franchise are hardly surprising. How could anyone (even judges) fail to sympathize with All-American gridiron heroes seeking their fair share for the uncompensated cloning of their identities in avatars which were their virtual twins, down to their weight, height, faces, home states, jersey numbers, wrist band preferences and unique playing styles. In the wake of plaintiffs' success in Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013) and In re NCAA Student-Athlete Name & Likeness Licensing Litigation, 724 F.3d 1268 (9th Cir. 2013), it was inevitable that other celebrities would take their shot at cashing in on the alleged misappropriation of their personas in other mega-hit videogames. But as two odd bedfellows – former Panamanian dictator Manuel Noriega and Hollywood "bad girl" Lindsay Lohan – have learned, it's tougher sledding for celebrities who are anything but All-American heroes.

The "right of publicity" (recognized in Texas and most other states and by the U.S. Supreme Court) purports to protect against the uncompensated commercial exploitation of one's likeness or identity by another. Taking umbrage at his thinly disguised inclusion as an alleged "kidnapper, murderer and enemy of the state" in Call of Duty: Black Ops II without compensation, Noriega sued Activision Blizzard, Inc. last year on several claims, including California's statutory right of publicity. In the game, Noriega's alleged virtual evil twin bears a striking resemblance to the original, from his olive green combat fatigues to his acne pock-marked face; other characters in the game are reported to refer to the avatar as "Old Pineapple Face," as Noriega himself was known to his fellow Panamanians. According to Activision, Black Ops II earned more than $1 billion in sales in the first 15 days after its November 2012 release, and Noriega wanted his cut.

These cases highlight a common criticism of the transformative use test: that its highly subjective elements permit courts to reach different conclusions on substantially similar facts.

Applying California's "transformative use" test (which asks whether the celebrity likeness is one of the raw materials from which the work is synthesized, or is the sum and substance of the work itself), the court granted defendant's Anti-SLAPP motion and dismissed Noriega's suit, holding that "Noriega's right of publicity is outweighed by defendant's First Amendment right to free expression" – the opposite of the conclusion reached in Hart and Keller. As in those cases, Noriega's alleged avatar was but one of many characters which only appeared in portions of the game; was highly similar in manner and appearance; and is portrayed doing that which made Noriega famous in real life (a corrupt and ruthless military leader).

Nonetheless, the court found Activision's use of Noriega's likeness was transformative, because his avatar's image was created from publicly available photos which were part of the extensive "raw materials" from which the game was synthesized, and the "complex and multi-faceted" game made "de minimis use of Noriega's likeness" – things which could equally be said of the college quarterbacks who were the named plaintiffs in Hart and Keller. The court's detailed recitation of Noriega's many crimes suggests that the result was driven in part by the court's understandable disgust for Noriega and desire that he take nothing. These cases highlight a common criticism of the transformative use test: that its highly subjective elements permit courts to reach different conclusions on substantially similar facts.

On the other side of the country, Lindsay Lohan sued Grand Theft Auto V producer Take-Two Interactive Software Inc. and others in New York State court, claiming a character in the game closely resembles her (with similar facial features and body type, hair style, and wearing items from Lohan's clothing ensemble while throwing her signature "peace sign"), and that the character's side mission in the game incorporates personal details from Lohan's life, including the famous Chateau Marmont Hotel on Sunset Boulevard, where Lohan once lived and still frequents.

Take-Two fought back hard, moving to dismiss and for sanctions on the ground that her suit was frivolous and brought for "publicity purposes," and because her allegations failed to satisfy the more restrictive elements of New York's right of publicity statute, which protects only against the nonconsensual use of plaintiff's "name, portrait, picture or voice ... for advertising purposes or for the purposes of trade." Playing the "bad girl" card, defendants also noted that the bikini-clad avatar depicted in the game is not wearing the "probation ankle monitor" worn by the real Lohan in a photo on which she claims the avatar was based.

Having already lost a similar case against the rapper Pitbull for lyrics allegedly referring to her arrest and incarceration, Lohan's lawyers filed a lengthy amended complaint, emphasizing examples of how her alleged avatar was featured in advertisements, cover art and other marketing of the game, thus attempting to bring her claims more into line with New York's narrower right of publicity statute. Whether these amendments will save Lohan's suit remains to be seen, but her well-known reputation for noncompliance with court orders may prove to be a greater impediment. Which raises a more troubling question: if the right of publicity claims of unlikeable celebrities are treated differently from those brought by celebrities we admire, is the problem with them or a nebulous and subjective legal doctrine which produces unpredictable and inconsistent results?

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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