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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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