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 GTA  lawsuit fails to defeat First Amendment defense
GTA lawsuit fails to defeat First Amendment defense
November 2, 2012 | By Eric Caoili

Purported Cypress Hill singer Michael "Shagg" Washington's lawsuit against Rockstar Games and Take-Two Interactive over the alleged use of his likeness in Grand Theft Auto: San Andreas was dismissed due to First Amendment protections.

An appeals court in California ruled that Washington's lawsuit failed to demonstrate a probability of defeating the video game companies' First Amendment-based "transformative use" defense, which allows them to use copyrighted work, or in this instance Washington's likeness, for works that serve the public's interest.

Rockstar and Take-Two filed a motion to strike Washington's complaint in March 2011, claiming that their actions constituted as exercising their free speech rights, and presenting articles discussing the social issues in GTA:SA as evidence that the game involved matters of public interest. The trial court granted that motion, which Washington appealed.

Video games did not officially qualify for First Amendment protections until last year, when the U.S. Supreme Court ruled that games "communicate ideas through familiar literary devices and features distinctive to the medium," and should be afforded the same free speech protections as books, music, and movies.

Washington filed his lawsuit two years ago and sought $250 million in damages -- around 25 percent of what he said was GTA:SA's profits -- arguing that Rockstar misappropriated his likeness, identity, ideas, and life story for the 2004 game's hero CJ. He claims to be a back-up singer for rap group Cypress Hill, but the band denies he is affiliated with them in any way.

He met with members from the developer in 2003, spent time sharing his experiences growing up with street gangs, and gave them photos of himself. Washington is listed as one of GTA:SA's many models in the game's credits, and a Rockstar employee has previously admitted to taking in-game sceenshots of CJ to match Washington's poses in his own photos.

Despite that evidence, an appeals court upheld the trial court's decision this week and ruled Rockstar and Take-Two's alleged actions as protected under the First Amendment. According to court documents posted by Hollywood Reporter, the judge also found that Washington failed to provide sufficient evidence that CJ is based on his likeness.

"The main character CJ is a black male with a completely generic and somewhat variable appearance," said the judge. "Plaintiff is relying entirely on CJ's physical appearance in the game, but that appearance is so generic that it necessarily includes hundreds of other black males."

Pop band No Doubt filed a similar lawsuit against Activision several years ago over the use of their likenesses in Band Hero in an unauthorized manner -- players could force in-game avatars based on No Doubt's members to sing songs from other musicians -- but the game publisher eventually reached a settled with the group.

The court did not consider Band Hero's use of No Doubt's members' likenesses protected under the First Amendment or qualifying as transformative use because the game "does not transform the avatars into anything other than exact depictions of No Doubt's members doing exactly what they do as celebrities."

There are a number of similar ongoing lawsuits filed against Electronic Arts, for unauthorized use of athletes' likenesses in sports games like Madden NFL. EA has also attempted to argue that its First Amendment rights to free expression overruled the publicity rights of the athletes in those cases.

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Ken Kinnison
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I immediately wonder if I'm the only one who actually sees a problem with this? Or they just feel like he didn't prove 'it was him' enough?
Could some company getting away with copying bruce willis for an action game?

Matt Robb
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Sounds to me like they used him as a subject matter expert and model rather than actually basing the character off him. That's a lot different than the examples mentioned for Band Hero and the EA Sports games.

Given how the guy is apparently a non-celebrity, there's no expectation that anyone would connect the character with his identity.

Ramon Carroll
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Exactly. Who here had ever even heard of this guy before this?

Jakub Majewski
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What really, really puzzles me is that this whole "likeness" thing is taken seriously at all. Copyrights on faces? Seriously? Well, why does the face-wearer claim to own the copyright - did he create his own face? Shouldn't he be paying license fees to his parents (not to mention God)?

Ken Kinnison
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@jakub - if you could do rampant likeness you could just hand draw a picture of beyonce endorsing your product.
To an actor or actress their likeness IS their product and especially for some celeb's they are distinctive enough for it to matter.

Alan Rimkeit
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Failed cash grab. Nuff said. Nelson says 'Ha ha!'

Saul Alexander
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Why is he the "purported Cypress Hill singer?" Do we not know for sure that he's in the band? *confused*.

Saul Alexander
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Huh, after some googling, it turns out he claims to be associated with the band, but actually isn't. How bizarre.

Jane Castle
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Ese, Can't you see I'm loco!

Joshua Darlington
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Live and learn, Shagg. Lawyer up and sign an agreement BEFORE you start work.

Mathieu MarquisBolduc
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Im trying to imagine someone going in front of a judge and claiming that a character and story where you commit countless crimes, kill thousands of people, including hundreds of cops, is based on your life.