Celebrity Likenesses as Prototypes for Video Game Characters: Pros and Cons
- How Is a Celebrity’s Likeness Protected in a Video Game?
- United States
- European Union (Germany as an Example)
- Non-EU European Countries (Belarus as an Example)
- How to Properly Use a Celebrity’s Likeness in a Video Game
Creating video game characters whose appearances resemble those of celebrities is a well-known practice in the game development industry. This strategy serves as a tool to draw attention to the game itself by leveraging the popularity of these “star” prototypes.
Such a move helps to attract new players from the celebrity’s fan base, increase the game's popularity, and consequently boost sales. Moreover, having such characters allows players to feel closer to their idols, fostering a strong emotional connection with the game world.
However, using the likeness of media personalities in video games (and any other products) without obtaining permission can lead to legal difficulties.
How Is a Celebrity’s Likeness Protected in a Video Game?
In cases of infringement on a celebrity’s right of publicity, it is essential to determine the jurisdiction under which the violation will be adjudicated.
As a general rule, jurisdiction is determined by the location of the infringement. For example, if an application is available in a digital store like Google Play or AppStore, one could file a lawsuit in any country where the app is accessible. Often, parties choose the jurisdiction where the defendant company is located, as this avoids the need to recognize a foreign court’s judgment for enforcement.
United States
The right of publicity in the U.S. prohibits the use of a celebrity's likeness and related attributes (such as clothing, voice, etc.) for commercial purposes. In the context of video games, this includes prohibitions against using characters whose appearances are similar to those of well-known individuals.
It is important to note that the prohibition specifically targets commercial use: the right of publicity does not apply if the likeness is used purely for creative purposes, i.e., without the intent to profit from its inclusion in the game. However, with such a right granted, one should be careful:whether or not there was commercial use is a matter of proof. Therefore, if a celebrity believes that their likeness has been unlawfully used, they have the right not only to prohibit such use but also to recover damages.
One of the most notable cases involving unauthorized use of a celebrity’s likeness was the dispute between Edgar Davids and Riot Games. The issue centered around the similarity between a League of Legends character and the famous footballer, particularly elements that constituted his typical image: unique glasses, dreadlocks, physique, and sports career. Since the game’s audience recognized the character as Davids without Riot Games having obtained his permission to use his likeness, the court found a violation. Consequently, the developer was ordered to compensate the celebrity for damages.
Each U.S. state also establishes its own criteria for protecting the right of publicity, leading to different amount of protection. A pertinent issue is the duration of the right of publicity: is it valid only during the person's lifetime or can it can be also enforced by heirs after person’s death?
A prominent example of this legal issue is Courtney Love’s claim against Activision for using her late husband Kurt Cobain’s likeness in the video game Guitar Hero 5, especially when performing songs by other bands, not just Nirvana. She argued that such use of his likeness was not authorized by her. Nevertheless, Activision representatives claimed that the license agreement for using the likeness had been signed by Courtney herself.
Thus, in the U.S., intentional use of a media personality’s likeness for commercial gain is recognized as a violation of the right of publicity.
European Union (Germany as an Example)
In Germany, the approach to regulating publicity rights differs from that in the U.S. The concept of general personality rights was developed based on provisions of the German Constitution and Civil Code. The scope of general personality rights is quite broad, but two aspects (the right to one’s name and image) are protected by specific legislative provisions. German law also allows for the protection of a likeness by heirs for up to 10 years after a person's death.
German case law includes instances of protecting a likeness, including overall resemblance, voice, signatures, and so on. Furthermore, an individual can grant permission for the use of their likeness for a fee, which, in turn, allows for the creation of characters based on that person in video games.
In general, whether simply paying for the right to use a likeness is sufficient or whether the final character needs to be approved by the “prototype” is a matter of contractual agreement.
Non-EU European Countries (Belarus as an Example)
Belarus does not have specific regulations regarding the protection of likenesses in intellectual property products. However, under general regulation, Articles 25 and 28 of the Constitution of the Republic of Belarus state that every citizen is guaranteed protection of their personal non-property rights, such as freedom, inviolability, and dignity of the individual, personal life, honor, and dignity. Therefore, the use of a celebrity’s likeness without their permission can be regarded as an infringement on their honor and dignity, especially if the likeness is used in a negative context.
How to Properly Use a Celebrity’s Likeness in a Video Game
While using “celebrity characters” is an effective marketing tactic for promoting a game, it carries significant risks. Generally, the more famous the person, the higher the risks and potential sanctions in the absence of permission to use their likeness. Moreover, developing a character without the appropriate permissions can negatively impact the game owner’s reputation.
If you plan to use a celebrity’s likeness in a video game, consider the following points
- Obtain Permission: It is crucial to obtain written permission from the celebrity or their label to use their likeness in the video game. This requires entering into an agreement, such as a license agreement, specifying the scope of the license (methods of using the likeness in the game and any associated promotional materials), duration, and territory of use. Generally, it is unnecessary to detail the individual elements of the likeness since the essence of using a likeness in video games is that it should be holistic and, therefore, recognizable.
- Respect Human Dignity: When creating a media personality’s likeness in a video game, it is essential to respect their human dignity. Avoid using offensive, negative, or vulgar images, as well as defamatory content.
- Trademark Use: If the celebrity’s likeness is associated with their trademark, ensure that you have the appropriate permissions to use it.
- Advertising: Be cautious about using likenesses in places accessible before downloading the game, such as in the game’s description, on screenshots in the AppStore or GooglePlay, or in promotional visual materials. Such use may be considered advertising and require appropriate permissions.
Thus, before releasing a video game on the local and international markets, ensure that it does not contain elements that infringe on the rights to use people’s likenesses — whether widely known or private individuals — and that the scope of the image likeness use is appropriate for the situation.
