Standard wank in a digital world: using someone’s likeness in video games

We love the digital space because it’s so creative and communicative. Our ability to blog, meme, post and share content through digital platforms is sexy. Naturally, in digital and “real world” contexts there are limitations on an unfettered ability to create and share content. What is unclear is if using someone’s likeness in video games is part of those limitations?

The gaming industry is big business. Global gaming is forecast to rise to US$70.1-billion in 2015. South Africa’s gaming industry is worth roughly R2.5-billion domestically. In the USA, a trend has emerged of using a celebrity’s likeness (rather than their exact image) as characters in video games. This raises some interesting privacy and copyright issues. Firstly, how similar must the video game character resemble a celebrity in order for privacy and copyright issues to apply? Secondly, does privacy and proprietary rights grant celebrities absolute control over their image?

In Mind Candy’s MoshiMonsters, players select a “monster pet” which they feed and care for in order to advance within the game. One of the “monster pets” offered was a character called Lady Goo Goo. The pet presented certain likenesses to the singer Lady Gaga including a pop-star facade and song titled “Peppy-Razzi”. (Those less familiar with Lady Gaga’s repertoire will be excused for not knowing her hit song, “Paparazzi”). Lady Gaga’s attorneys won an injunction (interdict) against Mind Candy to prevent the Lady Goo Goo character performing the ‘Peppy-Razzy” song and dance as this was deemed to be proprietary to the pop singer. However, it was left open if the character itself was proprietary to Lady Gaga. In another case, Lindsay Lohan has sued Rockstar, makers of Grand Theft Auto V over a character that her lawyers claim bare her likeness. Embarrassingly for Lohan, Rockstar countered that the character featured in the video game was based on model Shelby Welinder, not Lohan. The legal battle continues as Lohan’s attorneys argue that other characters in Grand Theft Auto also bear a strong likeness to the troubled actress.

American law recognises a celebrity’s “publicity rights” which gives celebrities control over their image and brand similar to a company’s trademark rights. In addition, celebrities (like ordinary citizens) have rights to privacy and personality protection from defamation.

South African law (like other commonwealth jurisdictions) has always recognised rights to privacy and protection from defamation. More recently, South African courts are expanding personality rights to include rights over one’s image and (in the case of celebrities) control over their “identity”. This seems to make provision for control and protection of that celebrity’s personal brand.

In Kumalo v Cycle Lab, Basetsana Kumalo, ex-Miss South Africa and Top Billing presenter was photographed looking at Cycle Lab’s merchandise. The photograph was later used by the cycling retailer in an advertisement to promote its products without her permission. The court confirmed that Kumalo had the right to privacy, dignity and control over her identity. It held that the right to her identity was infringed by the publication of her image in an advertisement which gave the impression that she endorsed the products (when she had not). The court added that when celebrities go shopping it is natural for them to receive more attention than a regular person. However, being famous doesn’t justify the unauthorised use of their image in advertisements.

This decision builds on earlier jurisprudence of the “Laugh it Off cases” which were also innovative for their time. During the early 2000’s, the t-shirt company Laugh it Off rose to notoriety for parodying famous brands in South Africa. Its most recognised designs “Black Labour White Guilt” and “Standard Wank” parodied the Carling Black Label and Standard Bank trademarks respectively. The matters reached the Constitutional Court which recognised that a brand is subject to the rights enshrined in the constitution. However, the court found that Laugh it Off’s right to freedom of expression outweighed SAB’s right to “distinctive character and repute” of its brand. A decisive factor was the massive marketing machine behind Carling Black Label and the relatively insignificant foot print of the t-shirt design.

In the matter parodying Standard Bank to “Standard Wank” lawyers (perhaps incorrectly) focused on a claim for trademark infringement. They argued that Laugh it Off was riding on the established brand of the banking giant. The court dismissed the claim as it said Laugh it Off’s penis motif couldn’t be regarded as an attempt to confuse the public that it’s products were part of the Standard Bank brand.

In applying these principles to the issue at hand it’s not yet clear if celebrities have complete control over their likeness in video games. If a South African version of Guitar Hero included a character based on the likeness of Steve Hofmeyr, would the celebrity have any control over it? (Equally important is considering if any reputable company would use Hofmeyr’s likeness intentionally?).

What can be said is if a celebrity’s exact identity was used to promote a game without their consent then that celebrity would have recourse (Kumalo Principle). However courts aren’t always consistent with this approach. In the USA, Manuel Noriega sued the creators of Call of Duty II for portraying him as a “kidnapper, murderer and enemy of the state”. It may be worth mentioning the Noriega launched his claim from a Panamanian prison where he was serving jail time for crimes in his home country. Naturally, his claim against the video game creators was dismissed. Similarly, the Laugh it Off cases demonstrate that big brands (and perhaps famous celebrities) aren’t completely protected from parody and unsolicited appearances in the public eye. There is still room to express a Standard Wank in cyber space. Perhaps video games are the next frontier.