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neurotic android

Caricatures of famous people in our game - is that allowed?

11 posts in this topic

Hi!

Characters in our online game are represented as caricatures of rock stars. Is that allowed? Names are fake. Could anyone take legal actions against us?

We do not want to risk. Anyone knows correct answer?


Sorry for bad english. [img]http://public.gamedev.net//public/style_emoticons/default/smile.png[/img] Edited by neurotic android
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This is best left to an attorney. They'd either
a) tell you it's ok
b) tell you it's not ok under any circumstances
c) tell you exactly what you have to do to ensure it's ok.

Here is a Stanford Law article that talks about this:

[url="http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter12/12-b.html"]http://fairuse.stanf...ter12/12-b.html[/url]

The case "[b]Cardtoons v. Major League Baseball Players Assn., 838 F. Supp. 1501 (N.D. Okla. 1993)." [/b][i]may [/i]suggest that what you intend [i]might [/i]be ok, provided you (talk to a lawyer and) jump through the proper hoops to ensure that what you are doing falls under what is known as "Fair use."

In that suit, a company sold trading cards featuring caricatures of major league baseball players. Text on the cards ridiculing player salaries and egos included a statement: “Cardtoons baseball is a parody and is NOT licensed by Major League Baseball Properties or Major League Baseball Players Association.” A federal court permitted the use of player’s names and caricatured images as free speech.

Talk to an attorney well versed in copyright law, and the "right of publicity" and free speech cases.

Also to note: The reason that case is -- a case -- is because they were sued. That product practically screamed "potential infringement--please sue me" Your game may be similar... Whether or not you end up winning (or losing) a lawsuit, being sued over a game you make is no walk in the park.


Brian Schmidt
Register now for [url="http://www.GameSoundCon.com"]GameSoundCon[/url]2012, San Francisco
October 24,25 2012. Edited by bschmidt1962
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I think Tom's FAQ on this might be a bit harsh on this particular topic (no offence, Tom!).

There are most definitely legitimate ways to use celebrity images and or semi-likenesses, caricatures, etc in ways that do not violate the "right of publicity" (state-by-state laws that let an celebrity have control over use of their likeness). People Magazine photos, true parody, news items are but a few valid uses of someone's image without their permission.

However, when navigating something like this, [i][b]it is essential you talk with a qualified attorney[/b][/i] who is well versed in (among other things) the right of publicity and free speech rights. Otherwise, you're asking for big trouble. This isn't something you want to do naively, and the line between what can and can not be done is not necessarily well-defined. Spending a few hundred dollars talking to an attorney now could easily keep you from having to spend many times that later.
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[quote name='bschmidt1962' timestamp='1345756090' post='4972747']
I think Tom's FAQ on this might be a bit harsh on this particular topic (no offence, Tom!).
...
However, when navigating something like this, [i][b]it is essential you talk with a qualified attorney[/b][/i] who is well versed in ...
[/quote]
I think you just pointed out the very reason the FAQ is harsh.

Far too many people throw together a game, put it online, and get a C&D order that destroys the projects.

It is easy enough to throw build a game and put it online that many people never realize it may have legal complications. Those would feel much different if they had to pay for a physical shop, buy physical equipment, and deal more directly with regulatory bodies.

It happened so frequently, and there were enough notable cases, that today you'll note the Help Wanted sections of the board will immediately quash any IP-violating threads on sight. It was in part because of (alleged) IP-infringement where people don't bother to talk with a lawyer.

I don't think that particular FAQ is harsh enough. I wish it had less of a light-hearted nature, getting rid of the lawyer jokes at the end. Edited by frob
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[quote name='neurotic android' timestamp='1345297717' post='4970829']
1. Could anyone take legal actions against us?
2. We do not want to risk.
3. Anyone knows correct answer?
[/quote]

1. Yes.
2. Then don't do it.
3. No. But a lawyer could give you the best advice.
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[quote name='frob' timestamp='1345759474' post='4972779']
I don't think that particular FAQ is harsh enough. I wish it had less of a light-hearted nature, getting rid of the lawyer jokes at the end.
[/quote]

Heh. I think I'll leave it lighthearted, including the lawyer jokes. But I appreciate the thought very much.
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frob--
Fair enough points.

That said, "Fair Use" does indeed exist, and--used properly-- gets us things "Weird Al" and spoof images on "The Daily Show". It's fraught with land mines, but I hate to see cool stuff not get made when it perhaps could legitimately be..

Maybe I'd have like'd Tom's FAQ on this to go something like:

Q: Sheesh. OK, so I'll use a celebrity's face instead.
A: Just as bad. Celebrities make a living from their faces, and they'll sic their lawyers on you real quick if you try that. Celebrities are not fair game like public figures are.
Q: But what about "Fair use" or "Free Speech"? I read about that on Wikipedia.
A: Yes, "Fair Use" exists-- Your game almost certainly doesn't fit the qualifications for it. The [i][b]only [/b][/i]way to get a good idea is to hire and talk to an attorney who's an expert in what's known as "Right of Publicity". And even then, they won't be able to give you a definite "thumbs up."
Q: But I'd be safe, then, right?
A: Nope-- even then, you'll probably still get sued and spend all sorts of money (way more than you'd ever make from the game) just dealing with it. And you still might lose the case, even if your Attorney thought it was ok.
Q: Yikes--maybe I'd better just not bother
A: Nowwwww your're getting it.
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[quote name='bschmidt1962' timestamp='1345766787' post='4972810']
Maybe I'd have like'd Tom's FAQ on this to go something like:

Q: Sheesh. OK, so I'll use a celebrity's face instead.
A: Just as bad. Celebrities make a living from their faces, and they'll sic their lawyers on you real quick if you try that. Celebrities are not fair game like public figures are.
Q: But what about "Fair use" or "Free Speech"? I read about that on Wikipedia.
A: Yes, "Fair Use" exists-- Your game almost certainly doesn't fit the qualifications for it. The [i][b]only [/b][/i]way to get a good idea is to hire and talk to an attorney who's an expert in what's known as "Right of Publicity". And even then, they won't be able to give you a definite "thumbs up."
Q: But I'd be safe, then, right?
A: Nope-- even then, you'll probably still get sued and spend all sorts of money (way more than you'd ever make from the game) just dealing with it. And you still might lose the case, even if your Attorney thought it was ok.
Q: Yikes--maybe I'd better just not bother
A: Nowwwww your're getting it.
[/quote]

Okay, you got it. But since I didn't want to split the FAQ's copyright with you, I modified it all over the place.
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[quote]Okay, you got it. But since I didn't want to split the FAQ's copyright with you, I modified it all over the place.[/quote]
I'm pretty sure I (didn't read a disclaimer and then) clicked on a box that said something to the effect of whatever I write here can be skywritten at the will of the moderators. I did work hard to do my best "Sloper FAQ style" impression :)..
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[quote name='bschmidt1962' timestamp='1345771612' post='4972839']
I'm pretty sure I (didn't read a disclaimer and then) clicked on a box that said something to the effect of whatever I write here can be skywritten at the will of the moderators. I did work hard to do my best "Sloper FAQ style" impression [img]http://public.gamedev.net//public/style_emoticons/default/smile.png[/img]..[/quote]

You gave permission when you expressed this wish:

[quote]Maybe I'd have like'd Tom's FAQ on this to go something like:[/quote]

Be careful what you wish for, lest you may get it!

It was a good suggestion, and the FAQ is better for it.
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[quote name='bschmidt1962' timestamp='1345766787' post='4972810']That said, "Fair Use" does indeed exist, and--used properly-- gets us things "Weird Al" and spoof images on "The Daily Show". It's fraught with land mines, but I hate to see cool stuff not get made when it perhaps could legitimately be..[/quote]Do note, however, that fair use is limited to the USA (and, in slightly different form UK and Commonwealth), and it is not a "do what you want" right.

Also, the conditions of when fair use may apply are pretty narrow and well-defined, but even fulfilling the conditions [i]does not bestow a right[/i], it's subject to a balancing test.

In other words, when it comes to it, the judge weights the importance of "free journalism" and "educational value" versus the "damages" done to the copyright holder. If it appears "fair" in that light (i.e. it's substantially important for a school class to see a picture of Keith Richards, so it's acceptable for a teacher not to pay Mr. Richards for that), you're good.

But if the judge thinks that a [i]game [/i](which you maybe even make money from) does not have all that much to do with research, teaching, scholarship, or journalism, then you're in some real trouble. In that case you're going to pay those 20 million in repairs for the damages you did to Mr. Jagger and Mr. Tyler, and if that means they will have to take your last shirt, they will.
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