Have California's Likeness Laws Gone Off the Deep End?

An alleged misappropriation of Lohan's likeness

As recently noted by Professor Marc Edelman on Forbes, the civil lawsuit filed by Lindsay Lohan against RockStar games for alleged misappropriation of likeness in Grand Theft Auto V is being watched closely for its impact on the ability of video game makers to utilize public figures' images without offering them compensation.  

NFL players and their financial planners are certainly watching that lawsuit closely, as EA and other video game makers routinely distribute sports-themed games that utilize players' attributes.

Now, the latest lawsuit against Activision for its alleged unauthorized use of Manuel Noriega's likeness in Call of Duty: Black Ops reveals just how warped California's right of publicity laws are becoming, unless they are reined in.

In the 2006 case of Kirby v. Sega, the California Court of Appeals had held that the First Amendment protected Sega's incorporation of certain elements of singer Kierin Kirby into the character Ulala.

According to that court, Sega's use was transformative and thus protected. In contrast, as noted by Professor Edelman, is the same California Appeals Court's 2011 decision in No Doubt v. Activision, because that game supposedly involved "computer-generated recreations of real band members."

The distinction between the cases is not clear.

However, what is clear from the Lohan and Noriega cases is that, unless seriously circumscribed, such lawsuits will proliferate and threaten one of the fastest growing areas of cultural expression: video games.

Without a bright line rule that celebrities and video game makers can understand and apply evenly across cases, every aggrieved "celebrity" such as Noriega and Lohan can (and undoubtedly will) flock to California, and find an aggressive lawyer looking to cash in big on the developing legal theory by filing such complaints against software developers and video game makers.

Such cases are easy to file and difficult to dismiss.  Both the prior Sega and Activision cases involved years of litigation and hundreds of thousands of dollars in legal fees.