When I was in high school, machinima was all the rage. I’m no doubt dating myself, but Rooster Teeth had just released their first season, and we were hooked.
Not only was it cheap and easy-peasy to film, but we also didn’t have to worry about (1) lighting, (2) lip synching, or (3) costumes. Also, continuity was a friggin’ breeze. Anyway, I had a friend who wanted to make a rather snarky machinima short about her sibling (the usual high school drama), which brings me to the topic of this post:
What if you want to make a game about or featuring real-live (non-celebrity) people?
Is that a problem?
Obvious Answer:
TOTES McGOATS
Okay…
So, I’m in California, and that matters for the purposes of this post. Mostly, because the rights implicated by this issue are typically governed by state law, which means every state is different (i.e. California, because of Hollywood, is far more protective of the right to one’s identity and likeness than some other states).
No doubt you’ve heard of the term “right of publicity” which, is how celebrities are able to enforce the right to commercialize their likeness against others. Some famous examples include Grand Theft Auto and Guitar Hero:
The statute at issue when you’re trying to use well-known individuals in your games, at least in California, is Civil Code section 3344. If they’re dead, it’s 3344.1.
But that’s old news.
Everyone knows you’re just “asking for it” if you use a celebrity in your game. Fine. But what about non-celebrities? What can they really do to you–particularly if you’re not intending to sell your game or make any money off of it, at least initially?
Well, at least in California, people have common-law rights regarding their identity, and they’re actually more expansive than those provided for in the statute because they include a broader definition of “likeness”. “Common law” is legalese for ‘it’s an old right pre-dating statutes written by the state’s legislature, so listen up, buttercup!’ That’s not really accurate but it’s good enough to give you an idea.
The word you need to Google is “Misappropriation.”
This was an Australian phone company ad, and we can agree that the individual in the photo (at least before the lawsuit) wasn’t a celebrity. Still, Virgin Mobile used her likeness from the photo (for reasons I’ll discuss in a bit) without her consent for their advertising purposes (and not particularly flattering ones, either). However, just because she’s not a celebrity, doesn’t mean she’s without rights to keep people/companies from capitalizing on her likeness, even if there’s not really a market for her likeness to protect a brand or image in the same way as a regular celebrity.
In California, a person like this, if you used such a similar or identifiable likeness of a real person in your game, would only have to prove the following to have a cause of action against you:
- The (developer’s) use of (the individual’s) “identity”;
- The appropriation of (the individual’s) name or likeness to (the developer’s) advantage, commercially or otherwise;
- Lack of consent; and
- Resulting injury.
“Injury” could be either/both monetary and/or non-monetary (i.e. defamation, emotional distress, etc.).
So, in California, you wouldn’t even need to use someone’s likeness in your game for commercial purposes, but just using it at all. If you never publish/distribute/share it, I mean, there are varying degrees which would require legal review, but just be safe to assume that if you’re going to base a character in your game off someone you actually know, regardless of whether or not the representation is flattering to them, beware that it’s a hiccup you may have to deal with down the road.
Now, the ad campaign had some interesting issues.
Well, interesting to lawyers at least, but if it’s “interesting” to lawyers, that’s when your inner business-person needs to pop their head out of the sand, because it means there’s some meat on these bones that opposing counsel may pursue against you, if your game’s ideals fall flat.
So, in September 2007, a lawsuit was filed in Texas over that phone ad campaign picture. The ISSUE was that the picture itself was offered in the public domain via Creative Commons. (Look up articles on Creative Commons if you’ve never heard of it before–it could be a possible gold mine for imagery you’ve not yet tapped). The photo itself was posted by a man who gave it the “Attribution” license, which allowed others to use the photo pretty much in any manner conceivable, so long as some credit or links were provided. No payments required. The photo was clearly not taken by the individual depicted, so she doesn’t own the copyright…to the PHOTO, which was why the photographer was able to post the photo to his Flickr account. Well, and she probably didn’t care, given she likely knew the individual.
If you’re not familiar with the concept of who owns the copyright to a photo taken by a camera, just read about the monkey whose copyright claims over a selfie caused one photographer serious financial issues.
So, back to the phone ad.
The PHOTO was a Creative Commons license, but that’s only 1/2 the issue: The other half, and the reason she sued, was for the misappropriation of her likeness.
Lesson learned: Just because a photo (or someone’s likeness) is essentially license free online, that doesn’t mean you’re 100% in the clear. No, you have to think critically. You have to consider what’s being depicted. For the same reason that pictures of other people’s artwork is an issue, so too is it an issue to use someone’s likeness without their express consent (i.e. get it in writing–it’ll save you tons of headaches later on).
Okay…but what if the person’s likeness is in the public domain? Say…Marilyn Monroe?
For reasons that you can Google, Marilyn Monroe’s likeness (i.e. her right of publicity) was deemed to be governed by New York law, rather than California, and New York doesn’t allow one’s right of publicity to extend past death. This means her likeness and identity are in the public domain and free for anyone to use. Buuuuuut….not photographs of her. Those were taken by other people, and a copyright in a photo (and other mediums) last for the life of the copyright owner +70 years (unless they’re a company, then it’s slightly different for reasons not relevant here).
Thus, while the Australian ad photo was in the public domain, the likeness of the individual was not.
Above, with Marilyn Monroe, her likeness and identity are in the public domain, but photos of her are not necessarily in the public domain and could be subject to copyright infringement.