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Ellen Page & Last of Us: What is Appropriation of Likeness and How Can Video Game Developers Can Avoid Legal Trouble?
by Will Lewis on 06/25/13 02:21:00 am   Expert Blogs   Featured Blogs

The following blog post, unless otherwise noted, was written by a member of Gamasutra’s community.
The thoughts and opinions expressed are those of the writer and not Gamasutra or its parent company.

 

First Amendment
The video game websites are awash with the news that Ellen Page did not appreciate the resemblance between Ellie, the main character of Naughty Dog's hit game The Last of Us, and herself. Even the wider media is picking up on this storyWhen asked about the resemblance in a Reddit postMs. Page responded: “I guess I should be flattered that they ripped off my likeness, but I am actually acting in a video game called Beyond Two Souls, so it was not appreciated.”

Going back to May 2012, there are conflicting reports as to why Ellie more closely resembled Ms. Page in earlier versions of the game. In one report by Eurogamer, Ellie was originally heavily modeled on Ellen Page. GameTrailers reported that Bruce Staley, the director of Last of Us, said Ellie was a bit younger than Ms. Page and closer to someone like Ashley JohnsonAnd in a later story at Eurogamer, it was reported that the resemblance to Ms. Page was a complete coincidence, and that the suggestion that there was a resemblance between Ms. Page and Ellie was not a pleasant surprise. What is clear is that a resemblance between Ms. Page and Ellie was recognized before E3 2012, and by E3 2012 a new trailer had surfaced with a new Ellie that bore less resemblance to Ms. Page.

Many of the comments on Reddit and in the comments sections of blogs and articles have noted that it is common for game developers to model their characters after celebrities, some more loosely than others. I thought it would be interesting forGamasutra readers to learn more about the law surrounding this issue. Naughty Dog is based in Santa Monica, California, and California’s misappropriation of likeness laws are similar to the laws of many of the states. Therefore, I will show you the landscape of California law, and how there is both fact-based protection and First Amendment protection for artists.

 California Right of Privacy

Article 1, section 1 of the California Constitution provides for the constitutional right to privacy:

All people are by nature free and independent and have
inalienable rights. Among these are enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy.

This constitutional right to privacy is aimed at preventing the following four “principal mischiefs”: (1) “government snooping” and the secret gathering of personal information; (2) overbroad collection and retention of unnecessary personal information by government and business interests; (3) the lack of a reasonable check on the accuracy of existing records; and (4) the improper use of information which was properly obtained for a specific purpose.  (White v. Davis (1975) 13 Cal.3d 757, 775.)  To prevent these mischiefs, the law allows a plaintiff to sue and collect damages from a defendant who does any of the following:

  • Places another in a false light;
  • Discloses private, embarrassing facts;
  • Intrudes on another’s seclusion; or
  • Misappropriates someone’s names or likeness for commercial purposes.

If a plaintiff sues a defendant for misappropriating their name or likeness under the California constitution, then they are suing someone for violating their common-law right of privacy.

California also has a statutory right of privacy and protection against misappropriation of likeness. California Civil Code section 3344(a) provides the following protection:

Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.

In both cases, “likeness” and “identity” can include voice and turns of speech.

The primary way in which these differ is that the constitutional right to privacy does not protect dead people, but the statutory right does protect dead celebrities through the Astaire Celebrity Image Protection Act.

Elements of Violation

In the most simply stated manner, the elements of a common law cause of action for misappropriation of likeness are:

  1. the defendant’s use of the plaintiff’s identity;
  2. the use of the plaintiff’s name or likeness to the defendant’s advantage, commercially or otherwise;
  3. without consent; and
  4. resulting in injury to the plaintiff.

(Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 417.)

More verbosely stated, the plaintiff must prove all of the following:

  1. That defendant used plaintiff’s name, likeness, or identity without plaintiff’s permission;
  2. That defendant gained a commercial or other benefit from using plaintiff’s name, likeness, or identity;
  3. That plaintiff was harmed;
  4. That defendant’s conduct as a substantial factor in causing plaintiff’s harm; and
  5. That the privacy interests of plaintiff outweigh the public benefit served by defendant’s use of his/her name, likeness, or identity.

(CACI No. 1803.)

If Ms. Page actually sued Naughty Dog, then there could be a factual issue as to whether Naughty Dog intentionally used Ms. Page’s likeness or identity. It would be up to Ms. Page’s lawyers to uncover facts supporting the conclusion that Naughty Dog actually used her likeness or identity. Examples of such facts would be emails asking for a character that looks like Ms. Page, or statements in depositions by Naughty Dog employees or contractors that they intended to or were asked to make Ellie look like Ms. Page. Of course, if there was any smoking gun evidence, then the suit would be settled prior to trial. This is the fact-based protection for artists, and essentially it means that liability can be a matter of whether there is evidence that you attended to misappropriate someone's likeness.

Defense of Free Speech

There is one major defense to this type of lawsuit: the First Amendment to the U.S. Constitution. The following is the test used in California:

The “inquiry is whether the celebrity likeness is one of the ‘raw materials’ from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question. We ask, in other words, whether a product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness. And when we use the word ‘expression,’ we mean expression of something other than the likeness of the celebrity.” These “transformative elements or creative contributions that require First Amendment protection are not confined to parody and can take many forms, from factual reporting to fictionalized portrayal, from heavyhanded lampooning to subtle social criticism.” “[A]n artist depicting a celebrity must contribute something more than a ‘ ” ‘merely trivial’ ” variation, [but must create] something recognizably ” ‘his own’ ” ‘, in order to qualify for legal protection.” “[W]hen an artist’s skill and talent is manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit his or her fame, then the artist’s right of free expression is outweighed by the right of publicity.”

(Winter v. DC Comics (2003) 30 Cal.4th 881, 885.)

In simple English, the above can be translated through two examples:

  1. Using your own original drawing of the Three Stooges on a t-shirt, and selling those shirts without a license from the estate of the Three Stooges is not sufficiently creative and transformative enough to be protected by the First Amendment.
  2. However, reimagining country music performers Johnny and Edgar Winter, who are albinos, as Johnny and Edgar Autumn, who are giant, albino, half-man, half-worm monsters, in a Jonah Hex comic book is sufficiently transformative to enjoy First Amendment protection.

Based on some of the court’s reasoning in Winter v. DC Comics, it could be argued that this really boils down to a situation that is similar to trademark law. Is the alleged invasion of privacy causing confusion amongst consumers and is the plaintiff actually suffering any real damages from the allegedly invading acts?

In the current case, it is unlikely that a First Amendment defense would be available to Naughty Dog because there is no attempt at transformation. The question simply is, is that a likeness of Ellen Page or not, and did Naughty Dog intentionally use the likeness of Ellen Page or not?

Conclusion

I hoped you enjoyed delving into the world of privacy torts, and I hope that this gives you some guidance on your own character development.

This was originally posted at Global Law & Business Perspective. 

William Lewis is a tax and business attorney based in the Silicon Valley. He advises domestic and foreign clients on a range of business, tax, and estate planning matters. You can reach by email at lewistaxlaw[at]gmail[dot]com.

Nothing contained in this post, including any testimonials or endorsements, constitutes a guarantee, warranty, or prediction regarding the outcome of your legal matter. 

photo credit: “Caveman Chuck” Coker cc


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Comments


Glenn Sturgeon
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Ellen Page is so incredibly average looking. Theres a 1000 other girls who look almost just like her but Ellie is not one of them. Is she blind? Ellie looks average to, but even the facial shape is not the same.
I call it a plug for free publicity.

Daniel Backteman
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I looked at Ellie and I thought "Hey, Ellen Page".

Eric Geer
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When I first heard about the game, all through playing the game I thought it was Ellen Page and her voice throughout. I was, I think Sony got some kinda contract deal with her to do two games, ie Beyond Two Souls

Merc Hoffner
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http://kotaku.com/5911064/my-my-you-certainly-look-different-elli
e

Before E3 2012 there was a clearly visible redesign, in reaction to plenty comments about the striking similarity, as prior to that the resemblance was uncanny. We made jokes about it at the time. Naughty Dog clearly realized they were in trouble here and reacted in advance. Hence why Miss Page is not being even more forceful. It's shocking that Sony didn't pick up on what was about to happen before it hit the public in regards to Ellen Page simulator version 2:

http://www.youtube.com/watch?v=CoCDFpKGZb0

Emyl Merzoud
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A plug for free publicity? It's not Ellen Page who claimed that Ellie looked like her -- everyone did. The only reason this surfaced was because someone asked her on a AMA thread on reddit. That was the first time she ever commented on it.

Like others already said, when the first trailer of The Last of Us was shown I also thought Ellie was modeled after and voiced by Ellen Page.

Scott Lavigne
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Ellie looked a lot like Ellen Page before the redesign, but she has virtually no similarities in facial structure now. People say they look the same because they're petite white girls with the same haircut who dress similarly and also probably because the VA for Ellie sounds similar to Ellen Page and they're just not making the connection consciously. It's kind of silly how no one is acknowledging how all of the similarities are superficial things seen in a million people.

John Trauger
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Assmuing Ms. page can prove her likeness is appropriated, she has conditions 1,2, and 5 in the bag. Probably 4 too. It's proving harm that would be the sticky issue.

Jonathan Murphy
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It's becoming unavoidable that faces will match people exactly. Said people will possess the ability to sue. To tell artists, "Just don't make them." That is a laugh in 6. 1 in 6 people on the planet have duplicates in appearance. That goes for city streets, buildings, and anything else we artists can create with a camera, reference, or imagination. If Family Guy can have Mel Gibson fall off Mt Rushmore, why are we so limited? Stop with the exceptions. Throw out these laws now, or face millions of dollars in useless lawsuits later.

Christian Nutt
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It's not unavoidable. Last generation Square Enix was already creating highly realistic characters that don't look like anybody -- in particular Final Fantasy XII's Ashe and Basch look incredibly realistic but don't put me in mind of anybody who's blatantly famous, at least in the West.

Daniel Backteman
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@Jonathan

The problem is when people who make a living on their appearance have others, the people who in the end pay them, mistaking them for having anything to do with the product.

As a worst case scenario, imagine if the "protagonist" in Manhunt was a spitting image of Elijah Wood. And this is going into one direction, the other would be if someone is selling a game who people in the end only buy because it features an avatar of their dream person: a rough, almost naked Justin Bieber. I'd want some of the money if I was him.

Daneel Filimonov
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This means we should stop putting ourselves (ie. humans) into the likeness of our characters and create something that looks unlike humans. I think Mass Effect did a good job of this with their alien species.

Jonathan Murphy
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If I want an Arnold look alike chewing off kittens heads I can create whatever I want. It's called creative freedom. I'm more offended how Hollywood stars stand so far above us regular looking people. They can sue for likenesses in video game characters. Stop making the age old excuse, "People can't distinguish reality from fiction."

The laws they made back then were to deal with the power of the printing press. We can't let 200 year old laws chain us down as we move forward with technology. This must be addressed now with reason.

Ali Afshari
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If Naughty Dog was selling the game as something "starring Ellen Page", then I see an issue. She was just used as early concept inspiration. I think that, considering how many iterations a character goes through during pre-production, the inspirations all mix together to a point where it's hard to draw a direct comparison to a real person. To tell artists that they should shy away from using someone's likeness in the creation of art is just absurd to me regardless of any existing laws prohibiting such a thing. The mere act of creation should make this a separate thing that has no real damaging effect for person that had their look "ripped off" as Page puts it. I think she should be humbled that she would even inspire the conceptualization of a strong female protagonist.

I also think this is a matter of a simple celebrity comment catching fire on the internet and will cause such a stupid shit storm that Naughty Dog will end up getting in trouble just because everyone is making this into a thing.

Ian Richard
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To be honest, I'm thankful to Ellen Page for complaining and not immediately tossing a lawsuit. There is no doubt that the resemblance is strong. And we all know that picking specific people to replicate is COMMON in game development.

I think that, regardless of legality, it's a dick move. I don't want people to put me into their games without permission. ESPECIALLY, when I'm in a different game that actually respects me enough to ask. I find the entire practice rather shameful.

But this is what we get for chasing realism so blindly. The only way that our artist's can create a realistic appearance is to "Borrow" someone else's.

Booby K
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I wonder what results you will get if you ran a real picture of Ellen Page and screenshots of Ellie through facial recognition software. Would the result be the same? Can this be used to prove that a picture Ellen Page was used as the starting point for Ellie?

Alex Covic
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There needs to be "conclusive evidence" that a game studio based their 3D model on an actress for a successful pursuit of a lawsuit.

Artwork, Emails, Design documents, notes from meetings, testimony of conversations mentioning some "famous person" specifically, etc, etc - otherwise, this is baseless, ... in my opinion. And there obviously was evidence, which might have interested the court, in this specific case.

You can still "re-create" anyone without fear, if you don't mention him/her in public or use (print/digital) material of him/her for your game? If the rare case of a lawsuit would come up, you have the court and lawyers pretending to be art-critics, since you can (successfully) pledge, your work was based on someone, who "just happens to look a lot like" celebrity xyz. Ideally presenting some lookalike "Joe/Joan Average" in court. But it should not go that far, in the first place? Act smart from the start?

mike amerson
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Make no mistake, in Art - There is nothing original. Everything we create as artists, is made up of other elements that have came through one of our 5 senses. How can we think of color if we never had seen it? How can we describe music, if not having heard a melody at some time in our lives? In essence, everything, and anything is inspiration for new works, either consciously, or subconsciously. Therefore the legal question relies upon weight. How much weight of a single item goes into defining something original? Did the artist reference Ellen Page as inspiration for the character? and was it a conscious decision? In my opinion it was likely that he did, but I also think that he was conscious to maintain a variance enough so that he feels it wasn't crossing any legal boundary. The variance is typically, a minimum of 20% (as a general rule).

Lincoln Thurber
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Prior to e2 2012 the likeness of Ellie was so much like Ellen Page that it was unmistakable. If you look at video of the game from 2011 it is unmistakable that the character looks like Ellen Page.

I think Naughty Dog they modified that model to look more like Ashley Johnson, but they left so much of that 2011 Ellen pAGe model that you could say it was only a slight modification. The other wrinkle is can you prove they were using a "specific" Ellen Page? Because they could have been ripping off the character of Libby/Boltie from the film "Super" (2010). Hell, if it can be linked to the film then they owe writer/director James Gunn an apology.

Should Ellen Page be annoyed? Sure. Should she sue? Probably not, but she does not plan to do that anyway. I do however think that artists from Naughty Dog who did preliminary art for the game should apologize.

mike amerson
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I agree, but unfortunately an apology would be an admittance of guilt, and such putting Naughty Dog at risk for litigation. They will never apologize (even if they wanted to), because of this. They will either not comment, or deny it from here out. It's too bad, but that is the reality of it.

Lex Allen
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Yeah, it's pretty ridiculous. I didn't even know who Ellen Page was, so I googled her really quickly and was like, "Oh, Juno."

Seriously, every other girl in America looks like her, and the "Last of Us" girl sort of looks like her, but at first glance I wouldn't think of her.

Jacob Germany
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I've yet to see anyone explain how either Ellie, pre or post E3, is anything more than somewhat similar to Ellen Page. There's no "unmistakable", there's no "exact match". Ellie's face is longer, her mouth is narrower, Ellen Page's face is considerably wider, a stronger jaw line, and a wider mouth. Obviously there is a similarity, but I think much of what people are seeing is a female that is youthful, white, and brown-haired that have kinda-sorta-similar features.

The reason people see Ellie and immediately recognize "Ellen Page" is largely due to her being the most famous real-life individual of that age range, ethnicity, and gender. I imagine there's some connection to apophenia going on, though it's more of seeing an exaggeration of patterns that do exist.

In other words, I can clearly see how Ellen Page was an "inspiration" for Ellie, as Naughty Dog has explicitly stated, but I see no legally dubious "appropriation". The oddest and closest connection is honestly the name "Ellie". Beyond that, it's a natural progression of using an inspiration as a base for a final model.

Daniel Backteman
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Here's another anecdot from speaking with my friend:

"So, debate about Ellen Page and Last of Us now. Sprung up from Reddit. There's a Gamasutra article and a Kotaku article linked there if you're interested and want pictures"

"Oh, wow. I went into the Kotaku link and they compare Ellen Page with the actual game character. It does look a lot like her."

"Huh, what - where?"

"On the top, there's a .gif."

"Oh no, no. That's how Ellie looked before she was redesigned. That's not actually Ellen Page."

"Wow."


Of course we're not saying that she would win a case; and if you go into specific features of both you can obviously find differences. Doesn't change the fact that we immediately associated it with her (though my friend's perspective might have been a bit biased due to me).

Mathieu Rouleau
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Anyone else notice how much Joel looks like Lost's Matthew Fox?

http://www.imdb.com/name/nm0289142/?ref_=tt_cl_t1

http://images4.fanpop.com/image/photos/22100000/Matthew-Fox-Teleg
raph-Magazine-Photoshoot-matthew-fox-22124308-416-614.jpg

http://cdn.sheknows.com/articles/2012/05/matthew-fox-dui-buzz.jpg

Seems pretty obvious to me, I guess they dodge the bullet on this one.

Eric McVinney
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IMO and knowing that I'm being a bit harsh with this one, but it shows the lack of imagination of ND's part of character design/creation. Basing most, if not all, physical features off of a well known actress/actor is a huge no no.

As mentioned in this topic/comment section, Square-Enix has done a terrific job of original character design for most of their titles. Why couldn't ND do the same? Change Ellie's nose structure, hair color, mouth, whatever. Just make sure that it doesn't closely resemble that of a known public figure. Heck, sometimes celebs don't mind but that's not always the case.


none
 
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