This article is from the source 'guardian' and was first published or seen on . It last changed over 40 days ago and won't be checked again for changes.
You can find the current article at its original source at http://www.theguardian.com/technology/2014/oct/13/lindsay-lohan-manuel-noriega-suing-video-games-legal-view
The article has changed 4 times. There is an RSS feed of changes available.
| Version 2 | Version 3 |
|---|---|
| Are Lindsay Lohan and Manuel Noriega right to sue over video game likenesses? | Are Lindsay Lohan and Manuel Noriega right to sue over video game likenesses? |
| (21 days later) | |
| It is beginning to sound like something out of an absurd comedy movie – or a frighteningly lucid fever dream. Both Lindsay Lohan, star of Mean Girls and Scary Movie 5, and former dictator Manuel Noriega are currently suing video game publishers for using their likenesses without permission – the former in Grand Theft Auto V, the latter in the military shooter Call of Duty. | It is beginning to sound like something out of an absurd comedy movie – or a frighteningly lucid fever dream. Both Lindsay Lohan, star of Mean Girls and Scary Movie 5, and former dictator Manuel Noriega are currently suing video game publishers for using their likenesses without permission – the former in Grand Theft Auto V, the latter in the military shooter Call of Duty. |
| Lohan, who started the legal battle in July, is stepping up her case with a 67-page document, which alleges that the character of Lacey Jonas, a blonde actor who the player has to rescue from a paparazzi scrummage, is “unequivocally” based on the star. From the Hollywood Reporter: | Lohan, who started the legal battle in July, is stepping up her case with a 67-page document, which alleges that the character of Lacey Jonas, a blonde actor who the player has to rescue from a paparazzi scrummage, is “unequivocally” based on the star. From the Hollywood Reporter: |
| According to the amended complaint, the game publisher ‘used a look-a-like model to evoke the persona and image’ of Lohan by imitating a photograph that was once taken of her in 2007. | According to the amended complaint, the game publisher ‘used a look-a-like model to evoke the persona and image’ of Lohan by imitating a photograph that was once taken of her in 2007. |
| Meanwhile, Noriega, who is serving 20 years in a Panamanian prison for killings carried out during his dictatorship, will face new difficulties in his lawsuit against Activision. The publisher has brought in the former New York mayor Rudy Giuliani, now an attorney, to co-counsel in its defence. | |
| “What’s astonishing is that Manuel Noriega, a notorious dictator who is in prison for the heinous crimes he committed, is upset about being portrayed as a criminal and enemy of the state in the game Call of Duty. Quite simply, it’s absurd,” said Giuliani. “Noriega’s attack on the rights of Call of Duty comes as no surprise considering he’s a lawless tyrant who trampled over the rights of his own people.” | “What’s astonishing is that Manuel Noriega, a notorious dictator who is in prison for the heinous crimes he committed, is upset about being portrayed as a criminal and enemy of the state in the game Call of Duty. Quite simply, it’s absurd,” said Giuliani. “Noriega’s attack on the rights of Call of Duty comes as no surprise considering he’s a lawless tyrant who trampled over the rights of his own people.” |
| In a press release on the subject, Activision stated: | In a press release on the subject, Activision stated: |
| If successful, Noriega’s efforts would give numerous historical and political figures – and their heirs – a veto right over their appearances in works of art, having a chilling effect on movies such as Forrest Gump and Zero Dark Thirty, TV shows such as Saturday Night Live and Boardwalk Empire, and beloved books such as Primary Colors and The Paris Wife, just to name a few. | If successful, Noriega’s efforts would give numerous historical and political figures – and their heirs – a veto right over their appearances in works of art, having a chilling effect on movies such as Forrest Gump and Zero Dark Thirty, TV shows such as Saturday Night Live and Boardwalk Empire, and beloved books such as Primary Colors and The Paris Wife, just to name a few. |
| So what does US law say on these matters? “Several countries give individuals a legal ‘publicity right’ to control how they are represented in media – including in games,” says Jas Purewal, an interactive entertainment lawyer at Purewal & Partners. “The US in particular has strong publicity rights law, which is a big factor in both the Lindsey Lohan and Manuel Noriega lawsuits. Previously it has been used in games lawsuits including from the musician Axl Rose, the rock band No Doubt and a range of athletes against games publishers.” | So what does US law say on these matters? “Several countries give individuals a legal ‘publicity right’ to control how they are represented in media – including in games,” says Jas Purewal, an interactive entertainment lawyer at Purewal & Partners. “The US in particular has strong publicity rights law, which is a big factor in both the Lindsey Lohan and Manuel Noriega lawsuits. Previously it has been used in games lawsuits including from the musician Axl Rose, the rock band No Doubt and a range of athletes against games publishers.” |
| Technically, the ability to portray real-life people in fictional works is protected in the US by the First Amendment, which prohibits any law that abridges freedom of speech. Content creators will often seek defense against publicity rights claims via the “transformative use” test, which seeks to prove that that the likeness was used to create a wholly new and original work. | Technically, the ability to portray real-life people in fictional works is protected in the US by the First Amendment, which prohibits any law that abridges freedom of speech. Content creators will often seek defense against publicity rights claims via the “transformative use” test, which seeks to prove that that the likeness was used to create a wholly new and original work. |
| This would appear to be useful in the Rockstar case – indeed no claim is made in the game that the character of Lacey Jonas is in fact Lohan. “The mere fact that there is a character looking more or less like a celebrity in a game is not a silver bullet on its own,” says Purewal. “You would still have the First Amendment and transformative use issues.” | This would appear to be useful in the Rockstar case – indeed no claim is made in the game that the character of Lacey Jonas is in fact Lohan. “The mere fact that there is a character looking more or less like a celebrity in a game is not a silver bullet on its own,” says Purewal. “You would still have the First Amendment and transformative use issues.” |
| However, if Lohan’s legal team manages to convince a judge that the Jonas character is unmistakably a depiction of the actor, the situation changes – “transformative use” is less reliable when the depiction is specifically for monetary gain. Lohan’s new lawsuit makes specific reference to the use of the character’s image on merchandise such as T-shirts and mugs, as well as on advertising posters and billboards. It is also contending that freedom of speech extend only to limited artistic works, and not commercial products. | However, if Lohan’s legal team manages to convince a judge that the Jonas character is unmistakably a depiction of the actor, the situation changes – “transformative use” is less reliable when the depiction is specifically for monetary gain. Lohan’s new lawsuit makes specific reference to the use of the character’s image on merchandise such as T-shirts and mugs, as well as on advertising posters and billboards. It is also contending that freedom of speech extend only to limited artistic works, and not commercial products. |
| If a precedent is set, does this mean that works of satire will no longer be free to depict, or even hint at, real-life personalities? “Publicity rights arguments do run into fair use and parody/satire arguments,” says Purewal. “A judge has to balance together the individual’s right to control their image with the creator’s freedom of expression and free speech rights, as well as their right to create parodies or satire. In practice, this often comes down to the kind of use of the individual in the product, whether it is considered reasonable for the purpose intended and whether it is a commercial or non-commercial use.” | If a precedent is set, does this mean that works of satire will no longer be free to depict, or even hint at, real-life personalities? “Publicity rights arguments do run into fair use and parody/satire arguments,” says Purewal. “A judge has to balance together the individual’s right to control their image with the creator’s freedom of expression and free speech rights, as well as their right to create parodies or satire. In practice, this often comes down to the kind of use of the individual in the product, whether it is considered reasonable for the purpose intended and whether it is a commercial or non-commercial use.” |
| In the Noriega case, there’s no attempt to disguise the fact that the character depicted in Call of Duty: Black Ops II, is the ex-dictator – he’s part of the game’s Cold War setting which takes in other historical figures including president Kennedy. Here the freedom of speech and “transformative use” defenses would wobble – just as they did for Electronic Arts in 2013, when the publisher was sued by college football players when their likenesses were used in the 2008 game, NCAA Football. In that case a court ruled that, as the onscreen figures were a direct representation of the players, their rights to publicity usurped the publisher’s free-speech claim. EA later agreed to pay $40m in damages to the athletes. | In the Noriega case, there’s no attempt to disguise the fact that the character depicted in Call of Duty: Black Ops II, is the ex-dictator – he’s part of the game’s Cold War setting which takes in other historical figures including president Kennedy. Here the freedom of speech and “transformative use” defenses would wobble – just as they did for Electronic Arts in 2013, when the publisher was sued by college football players when their likenesses were used in the 2008 game, NCAA Football. In that case a court ruled that, as the onscreen figures were a direct representation of the players, their rights to publicity usurped the publisher’s free-speech claim. EA later agreed to pay $40m in damages to the athletes. |
| Noriega’s case is much more complicated however – primarily because he’s not a US citizen. “US publicity rights law has been extended to foreign nationals in the past, but it is unclear whether a judge and jury would actually extend that to the former dictator of Panama,” says Purewal. “Even if Noriega does have US publicity rights, Activision may have First Amendment rights which trump them. Noriega may also have difficulty in demonstrating what loss he has actually suffered, especially given his reputation. | Noriega’s case is much more complicated however – primarily because he’s not a US citizen. “US publicity rights law has been extended to foreign nationals in the past, but it is unclear whether a judge and jury would actually extend that to the former dictator of Panama,” says Purewal. “Even if Noriega does have US publicity rights, Activision may have First Amendment rights which trump them. Noriega may also have difficulty in demonstrating what loss he has actually suffered, especially given his reputation. |
| “Finally, Activision almost certainly has considerably greater financial and legal resources than Noriega.” | “Finally, Activision almost certainly has considerably greater financial and legal resources than Noriega.” |
| Both cases are pending, and both are being vociferously defended by the games’ publishers. Rockstar’s parent company Take-Two has yet to comment on Lohan’s latest gambit, but in a statement regarding her initial suit filing, a spokesperson said: “Her claim is so legally meritless that it lacks any good-faith basis and can only have been filed for publicity purposes.” | Both cases are pending, and both are being vociferously defended by the games’ publishers. Rockstar’s parent company Take-Two has yet to comment on Lohan’s latest gambit, but in a statement regarding her initial suit filing, a spokesperson said: “Her claim is so legally meritless that it lacks any good-faith basis and can only have been filed for publicity purposes.” |
| Publicity is the one thing everyone has achieved out of this so far. | Publicity is the one thing everyone has achieved out of this so far. |
| Could this happen in the UK? | Could this happen in the UK? |
| We asked Alex Tutty of entertainment law firm Sheridans if similar cases could be brought before British courts. Here’s what he had to say. | We asked Alex Tutty of entertainment law firm Sheridans if similar cases could be brought before British courts. Here’s what he had to say. |
| “The US has laws concerning publicity rights which are typically stronger than the protections that celebrities would try to utilise in the UK. Different territories have different rules (for instance Belgium has laws which give strong rights to individuals regarding their name and image). | “The US has laws concerning publicity rights which are typically stronger than the protections that celebrities would try to utilise in the UK. Different territories have different rules (for instance Belgium has laws which give strong rights to individuals regarding their name and image). |
| “In England there are a variety of different laws that could be applicable. Passing off (a misrepresentation of association with the subject likely to deceive the public and causing damage to the subject in the course of business) would apply if there was an impression of “false endorsement” through the inclusion of a likeness of a person in a manner that it would lead to people thinking that the individual (such as Lindsay Lohan) is endorsing the product because they are in it. | “In England there are a variety of different laws that could be applicable. Passing off (a misrepresentation of association with the subject likely to deceive the public and causing damage to the subject in the course of business) would apply if there was an impression of “false endorsement” through the inclusion of a likeness of a person in a manner that it would lead to people thinking that the individual (such as Lindsay Lohan) is endorsing the product because they are in it. |
| “Most celebrities have registered trade marks for their names as shown in the Lady Gaga vs Lady Googoo/Moshi Monsters case. Defamation [may also apply] if ‘false’ words are communicated and likely to reduce the subject person in the eyes of a rightthinking recipient.” | “Most celebrities have registered trade marks for their names as shown in the Lady Gaga vs Lady Googoo/Moshi Monsters case. Defamation [may also apply] if ‘false’ words are communicated and likely to reduce the subject person in the eyes of a rightthinking recipient.” |