A recent case has found that videogame developers can base game characters are real celebrities provided they are transformed sufficiently. Keirin Kirby was the lead singer of a retro-funk-dance musical group known as “Deee-Lite,” who had a diva-like artistic character reminiscent of the 1960’s. Sega of America, Inc. developed a videogame in 1999 called “Space Channel 5” set in outer space and featuring a character named “Ulala,” who shared many attributes of Kirby’s character. Kirby claimed Ulala was a direct appropriation of her character’s unique public identity, and she sued Sega under an invasion of privacy claim.
Some of Ulala's characteristics and computer-generated features resemble Kirby, and her name is a phonetic variant of “ooh la la”- a phrase associated with Kirby. However, aspects of each character’s costuming and style are different- Ulala dons a jetpack, blue headset, and the number five on her outfit as opposed to Kirby’s 60’s flair. Kirby conceded she has no singular identity; her appearance and visual style are “continually moving.”
Sega contended that the First Amendment is a complete bar to the invasion of privacy claim. A defendant may raise the First Amendment as an affirmative defense to an allegation of appropriation if the defendant's work “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” This is known as the “transformative test” and was applied here by the court. Based on the differences stated above, the court found that Ulala is “transformative” from Kirby’s likeness and constitutionally protected.
Thus, given the many dissimilarities between Ulala and Kirby, any public confusion arising from a mistaken assumption that Kirby endorsed the videogame is easily outweighed by the public interest in free artistic expression. Kirby v. Sega of America, Inc., 144 Cal. App. 4th 47 , 2006 Cal. App. LEXIS 1672 (Cal.Ct.App. 2006)
Entertainment Software Association v. Swanson (2008)
The 8th Circuit Court of Appeals affirmed the District Court’s ruling, striking down a part of the Minnesota Restricted Video Games Act. Provisions of the Act prohibited the sale of video games to minors if the games were rated “M” for mature or “AO” for adults only. The Entertainment Software Association challenged the constitutionality of the Act, while the State defended, citing numerous studies linking media violence and aggressive behavior.
The court followed Interactive Digital Software Ass’n v. St. Louis County, and held that violent video games are protected free speech. Thus, any restrictions were subject to strict scrutiny analysis; requiring the law to be necessary to serve a compelling state interest and narrowly tailored to achieve that end.
The State argued that safeguarding both the psychological well-being and the moral and ethical development of minors were compelling interests and the court agreed. However, an interest in safeguarding the psychological well-being of minors must be real and not merely abstract. In other words, the State must prove that the law will in fact protect minors in a direct and material way and present more than anecdote and supposition.
Here, the court found that the State could not prove that violent video games actually negatively affected the psyche of minors. Without indisputable proof of causation between the exposure to video game violence and subsequent psychological dysfunction, the State did not meet its burden to satisfy strict scrutiny and the law was struck down.
Entertainment Software Association v. Swanson http://caselaw.lp.findlaw.com/data2/circs/8th/063217p.pdf
Upcoming Speaking Engagements
Mark will be moderating a panel on International Co-Productions held by the Producers Guild of America on March 26, 2008 at the DeMill Screening Room at 9336 W. Washington Blvd., Culver City. Non PGA members and students can attend by paying a fee. To attend or inquire RSVP by March 24, 2008 to pgaseminars@yahoo.com
Please put your first and last name in the subject line of your “RSVP” email response.
Mark will be speaking at a film finance seminar titled “Getting Films Funded” held at the WGA theater on March 29, 2008. http://www.filmfinancingseminars.com/
On June 25, 2008, Mark will moderate a panel on Intellectual Property In Entertainment & Media" put on by the California State Bar Intellectual Property Section at the Beverly Hills Hotel. The panel will discuss clearance issues in documentary filmmaking. www.calbar.ca.gov/ipsection
