Originally posted in Gamasutra, a website focused on the art and business of making games, on September 20, 2016.
Many game designers use – intentionally or unintentionally, with or without permission – the likeness of a real person. People have a "right of publicity" – or a personality right – to their name, image, likeness, or other objective aspects of their identity. Celebrities and well-known persons are often and obviously the people most likely to be damaged by a misuse of their personality. For good reason, people with a valuable identity will act to protect their economic interest. Therefore, game developers should tread carefully when creating avatars based on real people, and should consider at least the following issues.
However, the unauthorized use of a person's identity does not necessarily mean that person would win a lawsuit. The ongoing legal debate over what the law should and should not be is a murky area that we are not going to wade into here. We will instead focus on identifying risky decisions and trying to steer well clear of risk.
Obviously, if you know you used the likeness of a real person, the safest and surest way to prevent any dispute over using the likeness is to get permission for the use. Also obviously, however, if you had permission then you would not need to be reading this blog. Which is to say, if you know you have used the likeness of a real person and do not have permission to do so, proceed with caution.
It goes without saying – but let's say it anyway – that if you name your avatar after a real person and your avatar looks like that person, there is almost no question left as to whether you are using the likeness of that person. If you find yourself in this position, ask whether you should get / can get permission for use of the likeness, or perhaps come up with a new design.
Sports games are most often in the news about alleged claims of misuse of a right of publicity, because the game designers want their gamers to be able to play real people. The likeness there is often obvious and is frequently the source of litigation.
Some of the harder questions arise when the likeness is not so obvious. Most recently, Lindsay Lohan lost a lawsuit claiming a violation of her right of publicity. One key piece of evidence in that case was an actual photograph of Ms. Lohan that looked similar to the avatar that was created. The particular outcome of the lawsuit was perhaps more the result of where the lawsuit was decided than whether Ms. Lohan's likeness was used, and the outcome might have been different in a different court.
A broader point is that if you use an actual photograph of an actual person to create an avatar, which then closely models that actual photograph, you are placing your game in a risky position. Consider whether you can change one or more key features – hair color or cut, body type, clothing color or style, etc. – so as not to evoke a real picture of a real person. If an actual photograph, person, or image is the model for an avatar, game designers worried about a right of publicity claim should focus on transforming the avatar in meaningful ways. The risk of a person – or their manager – identifying the likeness is sometimes far greater than the creative value of using the likeness.
What role does the avatar have in the game? If the avatar is central to the economic value of the game (think of our sports games), then a court is more likely to find against the use of the likeness. On the other hand, if the character is a historical figure and central to the plot of a game based loosely around historical events, courts may be willing to allow the use of the likeness. This may be especially true where the person depicted by the avatar has done nothing to create an economic interest in their identity.
Also, if the avatar plays no central role, appears for only a moment, is not featured in the promotional material, etc., then its presence may not create much risk for the game developer.
Nonetheless, I can certainly imagine a claim that an actor may have if a well-known character that he played appeared and spoke the iconic line for that character (e.g., "I'll be back"), if only for a moment.
So, if you want to walk the right of publicity line, you should take that walk with counsel.