Name and Likeness Rights and the Right of Publicity

Often game developers want to use the names, images, or likenesses of others in their games. This can present a few problems for the developer if they do not get a proper name & likeness release. This entry will go over some of the finer details of the  causes of action that arise under personality and privacy rights and will explain why it is always in your best interest to get permission to use a person’s name and likeness from the person or the person’s estate.

Personality Rights Generally (Note: This is a general overview and history of the law—skip to the bulleted points and "Getting Permission" for the main points to take away from this discussion)

Right of Privacy: The rights of privacy are similar to but distinct from the tort of defamation, which I will discuss later. The Justices who came up with the doctrine (Brandeis and Warren, 1890, Harvard Law Review) pulled from a variety of legal sources, including old English and Common Law, as well as our own Constitution. The principle of a right to privacy eventually became precedent and is often viewed as a "penumbral right" that is implied in the Constitution. The right of privacy creates four distinct types of rights at common law. However, not all state courts acknowledge that each type is entitled to its own cause of action.

The four types are 1) Intrusion, 2) Disclosure, 3) Appropriation, and 4) False Light invasion of privacy. Intrusion is exactly what it sounds like—a physical invasion of one’s private sphere. An example is a paparazzo lurking outside of a celebrity’s window, taking pictures of her. Disclosure is the widespread dissemination of information that was intended as a private communication. Appropriation (important for our purposes) is the use of someone’s name and likeness without permission and for a commercial purpose in a manner that inappropriately exposes that person to the public. Finally, false light is the widespread dissemination of private information of and concerning an individual that places that individual in a false light.

Defamation: There are two kinds of defamation—libel and slander. Libel is published. Slander is spoken. Defamation is a false statement of and concerning the plaintiff (injured party) that is asserted as fact.  Hyperbole isn’t defamatory because it isn’t asserting a fact. In plain English, it means openly lying about someone in a manner that is believable, and the lie has a tendency to injure that person’s reputation.

  • Using someone’s name and/or likeness in a game and claiming that they have done something that they haven’t, even within the scope of artistic license, can cause serious harm to that person’s reputation and could potentially subject you to a costly lawsuit. Remember what your momma taught you—if you can’t say something nice, don’t say anything at all. This especially includes believable lies about Jack Thompson. Relying on an exception for parody is dangerous, because it’s usually determined in court.

Right of Publicity: For game developer purposes, this is probably the most important right of the bunch. The Right of Publicity is the legal compromise between intellectual property rights and privacy rights. It gives people a property interest in their celebrity-hood. Therefore, the only people who are typically able to benefit from the right of publicity are celebrities.

  • Basically, In legal short form, the laws in most jurisdictions say an individual or entity may not use a celebrity’s name and likeness in a manner that benefits their commercial product or service without permission from and (if demanded) payment to the celebrity. For example, If you use a picture of Bruce Willis in your game, you need his permission (typically through an agent/agency). If you refer to a famous sports star in your game, regardless of your intent, you should find out if you are allowed to do so. This is especially true with sports figures, as they are sometimes obligated to grant their teams and/or sports associations the exclusive right to use their name and likeness in connection with their profession.

Getting Permission

In film, studios hire lawyers, paralegals, and other specialists to point out every possible legal contingency in a screenplay. If a can of Campbell’s Chicken Noodle soup is used as a prop, the trademark for that label is cleared. If a historical reference to a famous deceased track star is made in passing, that reference is noted and the studio sends out a letter notifying the estate that the name is being used. If a poster of Janis Joplin is used on the protagonist’s bedroom wall, the clearance department will clear the copyright to the photograph contained in the poster as well as a name and likeness release from Joplin’s estate, or they will submit a notification of the use. Even if you believe your use is totally lawful, notifying the estate or individual of the use places them on notice, which means that a failure to contest the use can trigger the doctrine of laches. The doctrine of laches as it applies to notifications means that if they fail to raise a complaint within the period between notification between pre-production (when the notices go out) and release, that reliance is sufficient to trigger the doctrine. This theory is based on reliance—if a studio gives notice to someone that they plan on using a particular name or likeness, and the opposing party doesn’t respond, it’s unreasonable to expect a film to stop production. Failure to bring a timely claim, letting the studio rely on that silence as a waiver, and waiting until the film is released so you can sue for a bigger profit typically isn’t allowed by the Courts.

The clearance process is as meticulous as it gets, and it shouldn’t be any different for video games. The beauty of game development is that you are able to create content when you can’t use someone else’s. This means that if you can’t use an image of Jenna Jameson you can design a character that has the blonde-bombshell image and so long as it doesn’t borrow Ms. Jameson’s likeness, the product is your own creative work.

In some cases, getting permission is unavoidable. Below is a short-form name & likeness release letter similar to what you would find in a clip license. Getting something in writing is important. As an indie, your money shouldn’t be wasted on litigation fees to determine whether the doctrine of laches applies. The only way to positively avoid litigation is with written consent. However, before you send out a name & likeness release you should consult an attorney to determine what the name and likeness release should contain.

*** DISCLAIMER: The below form does NOT constitute legal advice and may be reproduced for educational purposes ONLY. THIS FORM HAS NOT BEEN REVIEWED BY A LICENSED ATTORNEY and is provided purely as an academic/educational resource. A LAWYER SHOULD BE CONSULTED PRIOR TO DISTRIBUTING ANY LICENSE OR RELEASE REQUEST***

Dear Mr. ___________:

    My Company [name of company] is preparing to enter into the production of [name of production/game]. We respectfully request your permission to use your name and/or likeness in connection with [name of production]. Please sign and date the release, below, and mail the release in the envelope provided.

Name of Project: [name]

Description of product: [brief game synopsis]

Start date of Production: [date of beginning production]

Type of Use ("Use"): [describe how you will use the name & likeness, i.e., "name will be printed on the spine of a book graphic in the virtual library within the game environment. The name will be clearly visible to players."]

Duration of Use ("Duration"): In perpetuity

Fee: Gratis

Grant of Rights:  ________ hereby grants [company name] permission to use _______’s name, likeness, biographical information, voice, or appearance for the intended Use in connection with [name of production] and for the Duration, in exchange for the stated Fee and other valuable consideration. 

 

Signed ___________________________________________    Date: ___________________________________________

    [name]

Due to the nature of our production, we must require that failure to notify us of a rejection of this release in writing will constitute a permissive waiver upon which we will rely.