We're all somewhat familiar with the endless stream of Flash games featuring some famous person: Presidential Paintball, Super Obama World, Whack Britney Spears, Paris Hilton Jail Escape, etc. An interesting question was posed to me the other day about these games: Is there a quarrel over the right of publicity related to Flash games? Obviously, retail games featuring certain public figures, such as professional athletes, are paying for the use of those celebrity likenesses. Flash games, however, are positioned much differently, and it's one of the more complex relationships between differing legal theories I've seen in the gaming sphere.
While we've discussed the right of publicity before, it's worth reiterating that the concept is basically the equivalent of a trademark for a famous person's likeness. Think of it like a brand name helping to sell a product. A lot of people will buy a game just because it's made by Nintendo. Similarly, a lot of people might buy a game that appears to be created or endorsed by someone; be that a particular game developer or a celebrity. How many people initially bought Madden Football because of Madden's attachment to it? Probably quite a few. There's certainly a good strategy in using celebrity to sell a product.
Flash games, though, are different than traditional retail games. Most of these games are free, making money from the traffic or ad clicks related to the game page. So, is the use of the celebrity here the same as one used to sell the actual product? In short: Yes. The person who created the game or features it on a website is theoretically increasing traffic based on the use of the celebrity, which increases the revenue the game generates. People play these games because of the celebrity content, not because of the games themselves. I don't mean any particular offense if you've developed one of these games. The simple fact is people aren't playing Presidential Paintball for the game's mechanics, they're playing it to shoot paintballs at Hillary Clinton or John McCain or Barack Obama. That's just the reality of the Flash game market when it comes to this type of game.
So, if these Flash game sites are making increased ad revenues based on the use of celebrities, should every celebrity with a Flash game be calling a lawyer? Short answer: No. Pretty much every use of someone's likeness in a Flash game is going to fall under some well accepted exception to the the idea of right of privacy as it exists in most states, or more generally to intellectual property concepts as a whole. That's not to say the lawsuit couldn't be brought successfully, just that in my opinion the grounds are tenuous at best.
Many of these Flash games are essentially political commentary, in which case the First Amendment would likely bar the suit. I'm sure a few decades ago the idea of a game as political commentary would have been surprising to most people, but such games are quickly becoming the more modern iteration of the political cartoon. Political speech is one of the most sacred forms of speech in the US, and, at most, its restriction is generally limited to what is known as "time, place, manner" controls. That is, when a protest is occurring on public grounds, the government may seek to specify the time, place, and manner of the protest, which is generally considered reasonable.
These, of course, are taking place on private property (private servers), so the restrictions aren't really applicable. In fact, a suit to have a game removed might even be considered a SLAPP suit. Flash games which are political in nature are almost certainly protected based on the First Amendment.
Non-political games, on the other hand, are more complicated. A number of theories could be applied in both lawsuits against these games; and more than I could possibly outline in a single column. However, I would imagine the two most common would be the right of publicity claim and a defamation claim. On the first, it's possible that the newsworthiness defense may work in the case of certain Flash games. That is, if the game is actually conveying some sort of news or historical event, the use of the figure may be considered acceptable. If the game is a fairly well defined social commentary, the game may survive either type of claim on the basis of the person being a public figure, so long as their is no actual malice involved with the game's creation. I do have some questions as to whether a malicious Flash game or one where the inclusion of a celebrity is for nothing more than increased traffic would survive a claim. However, the potential damages in the case may not be significant enough for many to pursue the claim; unless they have a personal objection to the game in question.
This issue is one that I imagine will be brought to court at some point, if it has not already. (If it has, I haven't run across the filings as yet, but there are a lot of courts and a lot of confidential settlements out there.) In any case, if you're planning to make a Flash game about a celebrity, it might be worth thinking about whether the game would fall into one of the safer legal categories, in case it becomes the next must-click.
Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc., where he is a board member of the Dallas chapter. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.
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