Sign in to follow this  
gamergamer

Using Celebrities in a Game

Recommended Posts

gamergamer    100
Hi, I am currently designing a game that is using celebrity characters. The name of the celebrity will NOT be in the game. Only an avatar that resembles him, some settings of places that are tied with that celebrity through movies, some moves (e.g. a choreography) and props that have been used by the celebrity etc. I was wondering if anyone know how to avoid any copyright infringement issues. What are the key things that I must avoid. Thank you in advance, GamerGamer

Share this post


Link to post
Share on other sites
Tom Sloper    16062
Quote:
Original post by gamergamer
>I am currently designing a game that is using celebrity characters.
>...an avatar that resembles him...
>I was wondering if anyone know how to avoid any copyright infringement issues.

Yes. Don't use celebrity characters.
Quote:
What are the key things that I must avoid.

Proceeding with your plan without a lawyer.

Share this post


Link to post
Share on other sites
kdog77    229
I would echo Tom's advice and not use celebrities as characters in your game. Period. Many jurisdictions grant celebrities the right to control commercial uses of their name, likeness and persona under the "right of publicity". In the US this is mostly governed by state statute and common law, but their are several trademark claims that can be made under the Lanham Act (e.g. false endorsement) and several common law tort claims (e.g. unfair competition) as well. Rights of publicity survives the death of the celebrity and may be controlled by the estate of the celebrity. I am fairly certain the Michael Jackson estate would have a problem with the model you posted even if you did not use MJ's name. Some dead celebrities are quite litigious (e.g. Marilyn Monroe and Elvis are highly protected).

No publisher would touch your game because it is too risky. Good luck!

Share this post


Link to post
Share on other sites
gamergamer    100
Quote:
Original post by kdog77
I would echo Tom's advice and not use celebrities as characters in your game. Period. Many jurisdictions grant celebrities the right to control commercial uses of their name, likeness and persona under the "right of publicity". In the US this is mostly governed by state statute and common law, but their are several trademark claims that can be made under the Lanham Act (e.g. false endorsement) and several common law tort claims (e.g. unfair competition) as well. Rights of publicity survives the death of the celebrity and may be controlled by the estate of the celebrity. I am fairly certain the Michael Jackson estate would have a problem with the model you posted even if you did not use MJ's name. Some dead celebrities are quite litigious (e.g. Marilyn Monroe and Elvis are highly protected).

No publisher would touch your game because it is too risky. Good luck!


Thank you for your reply especially kdog77 for your elaborate reply.

The MJ picture is not mine,is just something i found through Google images.

Since I am sure there are a lot of "modifications" I can do to avoid copyright infringement I was wondering if you have any sources with this kind of tips and strategies. If not, thanks anyway for your wisdom

GamerGamer

Share this post


Link to post
Share on other sites
Palidine    1315
Quote:
Original post by gamergamer
Since I am sure there are a lot of "modifications" I can do to avoid copyright infringement I was wondering if you have any sources with this kind of tips and strategies. If not, thanks anyway for your wisdom


That was answered above. Get a lawyer [smile]

You'll need one anyway since if a celebrity gets angry they'll sue you whether or not you've "done everything right". In our system you don't need to have done anything wrong to get sued. You still need to go to court and pay a lawyer if you're sued even if you will almost certainly win.

-me

Share this post


Link to post
Share on other sites
Tom Sloper    16062
Quote:
Original post by gamergamer
Since I am sure there are a lot of "modifications" I can do to avoid copyright infringement I was wondering if you have any sources with this kind of tips and strategies.

http://www.sloperama.com/advice/faq61.htm
Again: just don't do it.
Or get a lawyer.

Share this post


Link to post
Share on other sites
Promethium    580
While you should definitely think hard about what have been said in this thread, there are some "loop holes". Fair use in the US, for example, allows you to name specific products and people under a specific set of circumstances.

Satire is another common example. Shows like South Park and Family Guy and many others will often use celebrities with both likeness and name, often in less than flattering situations (for example, try and watch the South Park episode with the TV program "Russell Crowe Fighting 'Round the World")

The is also to some degree an unspoken agreement that, being in the public's eye, imitations of celebrities are inevitable. Otherwise just about every stand-up comedian would be sued. As another example, PopCap's Plants Vs Zombies have this guy and I haven't heard of the MJ estate suing PopCap.

So if you make a tongue-in-cheek character that dresses and moves in a way that could maybe be mistaken for a certain pop singer, then I would say that no-one would bother taking offense. However, if you slab a big sticker on saying "Look, it's Michael Jackson! This is Michael Jackson singing and dancing here, look, look!" then it's another matter.

As always, IANAL. If in doubt, don't do it [wink]

Share this post


Link to post
Share on other sites
Obscure    175
Quote:
Original post by gamergamer
Since I am sure there are a lot of "modifications" I can do to avoid copyright infringement I was wondering if you have any sources with this kind of tips and strategies. If not, thanks anyway for your wisdom

1. What you are talking about has nothing to do with copyright. The fact that you think it does shows that you need a lawyer.

2. Kdog has pretty clearly outlined the reasons why you should not do this. The only "modification" you can make to MJ's likeness that would eliminate the risk of legal action is to make it NOT look like MJ.

3. An actual lawyer answered this very question in this thread.

Quote:
Original post by Promethium
While you should definitely think hard about what have been said in this thread, there are some "loop holes". Fair use in the US, for example, allows you to name specific products and people under a specific set of circumstances.

Satire is another common example. Shows like South Park and Family Guy and many others will often use celebrities with both likeness and name, often in less than flattering situations (for example, try and watch the South Park episode with the TV program "Russell Crowe Fighting 'Round the World")

This is all true; and in a perfect world the OP would be free to go ahead. Unfortunately we don't live in a perfect world. In civil cases like this you have to pay to get legal defense.

Fair use won't protect the OP against being sued. Fair use is not a blanket protection that would allow the OP to dismiss a claim by waving a big "fair use" flag. It is a case by case defense, which has to be proven in court. That means the OP would have to go to court (incurring legal fees probably well in excess of $100,000) to prove their case. MJs estate almost certainly have a host of highly paid lawyers whose job it is to protect the value in his music catalogue, image and other associated rights and who would be more than happy to tie the OP in knots.

This is the real reason why we always advise indies to avoid things like this. Sadly it isn't a case of who is right or wrong but of what you can afford. Indies can't afford to fight these kind of legal cases and it makes no sense to start down a road that will lead you into a fight you can't win.

Share this post


Link to post
Share on other sites
gamergamer    100
Thank you all very much for your replies.

Promethium, what I saw at the Plants VS Zombies video is exactly the reason why I know that what I have in mind can be done.

Obscure, thank you for the post; it was very helpful.

What if the character is not a caricature of a public figure, but a character created by me who wears clothing that is similar to a public figure's famous appearance, and dances or fights or talks etc. like that public figure?

For example: This image (http://img206.imageshack.us/img206/1371/morphtrinneo01pw3.png) by LEGO (or made by someone by altering LEGO toys) breaches any copyright issues (or any other type of illegality related to public figures)?

Again, thank you all for your wisdom, you are great

GamerGamer

Share this post


Link to post
Share on other sites
Tom Sloper    16062
Quote:
Original post by gamergamer
What if the character is not a caricature of a public figure, but a character created by me who wears clothing that is similar to a public figure's famous appearance, and dances or fights or talks etc. like that public figure?

You can still be sued. Anybody can be sued for pretty much anything. You need a lawyer if you're going into business as a game developer or publisher.

Share this post


Link to post
Share on other sites
Sneftel    1788
Quote:
Original post by gamergamer
What if the character is not a caricature of a public figure, but a character created by me who wears clothing that is similar to a public figure's famous appearance, and dances or fights or talks etc. like that public figure?

It sounds like you're looking for a magic legal incantation that you can use to make yourself immune from being sued even though what you want to do is exactly what they're allowed to keep you from doing.

There is no such incantation.

Share this post


Link to post
Share on other sites
Obscure    175
Quote:
Original post by gamergamer
What if the character is not a caricature of a public figure, but a character created by me who wears clothing that is similar to a public figure's famous appearance, and dances or fights or talks etc. like that public figure?

Huh? Can you seriously not see that these two are the same thing. Creating a character that looks, dresses and moves like someone is the same as creating a character that is that person - unless you are intending to create a short fat white guy, with just one arm, who dresses and dances like MJ.

Quote:
For example: This image (http://img206.imageshack.us/img206/1371/morphtrinneo01pw3.png) by LEGO (or made by someone by altering LEGO toys) breaches any copyright issues (or any other type of illegality related to public figures)?

As I previously explained only a court can answer that question - do you have the $100,000+ necessary to go through a legal case to find out?

Finally I want to come back to this.....
Quote:
another example, PopCap's Plants Vs Zombies have this guy and I haven't heard of the MJ estate suing PopCap.

As of now they haven't been sued but we don't know if this is because they lawyers who work for MJs estate haven't noticed it or because they know that PopCap have their own big legal team and could afford to fight this.

Also, just because PopCap have got away with it that doesn't mean you will. 15 years ago I worked at Virgin Interactive. They made Spot Goes to Hollywood for the Sega Saturn, Playstation, SNES & Genesis. The game features the 7 Up character Cool Spot (officially licensed) and one of the levels is based on horror movies. Cool Spot encountered a host of enemies including (IIR)Mummies, Vampires, Werewolves, mad scientist and an enemy that looked like an Alien™. - Some artist thought it was cool and just decided to put it in.

As if by magic Fox's legal team found out. I guess some magazine must have printed a screen shot and they happened to see it. However it was they found out the result was a threat of legal action. I don't remember the exact amount but Virgin ended up having to pay something in the area of $250,000 just to avoid going to court and having to withdraw the game.

This isn't by any means the only similar case I have seen over the years. If you use something which is copyright or trademark of someone else or you use someone's likeness the law allows them to sue you. It doesn't even matter if you would win the court case if you can't afford the legal fees (which few indies could.)

Share this post


Link to post
Share on other sites
gamergamer    100
OK, ok I got it....Even I don't do something wrong, I have to be able to sustain a legal team in case of a lawsuit. You are totally right.

Dear Obscure, the "unless you are intending to create a short fat white guy, with
just one arm, who dresses and dances like MJ." doesn't fall in my the same category as the LEGO characters dressed like characters from the Matrix?
of course LEGO has the money to back up a legal defense, I know, but legal-wise what is your opinion?)

And one last question how can someone play the parody card? What is the right way to state it in your video game?

My best regards to all of you. Huge respect!

GamerGamer

Share this post


Link to post
Share on other sites
Obscure    175
Quote:
Original post by gamergamer
And one last question how can someone play the parody card? What is the right way to state it in your video game?

You can't. Read the answer I gave above. The part which starts "Fair use {claiming it is a parody} won't protect the OP against being sued....."

You can't put a magic "parody" label on your project and protect yourself from being sued. It can only be used in court as a defense once someone has actually decided to sue you and it requires that you pay an expensive IP lawyer hundreds of thousands of $ in fees. Do you have this much available?

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now

Sign in to follow this