The latest gaming platforms have taken virtual environments to a new level of realism and complexity—beyond anything envisioned at the time of Pong or Computer Space. With interactive virtual worlds now commonplace, developers leverage the latest technology to stretch the boundaries of their imaginations to create the most sensational, graphic and real games possible.
This realism, however, comes at a price, and developers should beware.
Most developers understand that well-known individuals have legal rights protecting them from the unauthorized use of their identities. But did you know landmarks and buildings do too? And famous (and not-so famous) stars and rights holders are asserting these aggressively against unwary developers and game publishers.
These legal rights aren't just theories in a text book. Two recent lawsuits in California have tested the boundaries of the law, and while the video game defendants prevailed, developers and publishers cannot disregard the identity rights of real world personas, brands, or locations.
The Individual Right to Publicity
Kierin Kirby, the former lead singer of Dee-Lite, sued Sega for the use of Ulala (the main character in the game Space Channel 5) who developers seemed to base on the singer's on-screen persona..
Space Channel 5 features the player-controlled protagonist Ulala, an anime-style reporter that is on a mission to defeat waves of aliens in dancing competitions by matching their dance moves. Marketed in the United States, Japan and Europe, the game's creators even considered licensing the Dee-Lite hit song, "Groove is in the Heart" to promote the game. However, the creators of the game testified that they did not base Ulala on Lady Miss Kier, but on Japanese anime archetypes.
Kirby, a pop star from the 80s and 90s with costumes and hairstyles similar to Ulala's, based her claims on her legal "right to publicity," which protects an individual's—particularly a famous individual's—right to commercialize and license her fame in a manner of her choosing.
The Court, ruling in Sega's favor, found the developers had a First Amendment right in creative expression. Sega successfully established that Ulala bore many differences from Lady Kier; including a different hairstyle, different costumes and a different body style.
Sega also showed that Ulala's dance movements in the game were different from Lady Kier's moves in Dee-Lite's videos. Finally, Sega proved that the context in which Ulala was used in Space Channel 5 was unlike any Dee-Lite videos or other public appearance made by Lady Kier. Based on these differences, the Court ruled that Ulala did not emulate Lady Kier, but rather was a "transformative" use and therefore protected artistic expression under the First Amendment.
The Right of a Landmark: Trademark/Trade Dress Liability
The "PlayPen" gentleman's club in East Los Angeles sued Rockstar Entertainment for the inclusion of a strip club called the "PigPen" in the virtual universe of Grand Theft Auto: San Andreas. The PlayPen alleged that the PigPen violated the PlayPen's trademark and trade dress rights because it was a similarly situated strip club with a similar name.
These types of arguments are common in trademark and trade dress lawsuits. Trademarks and trade dress are an area of intellectual property law giving a party the right to protect the distinctive logo or layout that serves to identify its goods and services.
Developers looking to populate a virtual world with real-world landmarks bearing distinctive features, signs, color patterns or slogans should be on guard against potential trademark or trade dress lawsuits from the real world owner of that mark. This form of protection does not just apply to famous marks (such as the McDonald's Golden Arches), but can also be applied to locally known distinctive marks, such as those of the PlayPen plaintiffs in the Rockstar case.
The owners of PlayPen argued that the inclusion of the PigPen strip club in the game violated the PlayPen trademark and trade dress.