LGJ: Come As Your Avatar, Smells Like Lawsuit? Nevermind
by Mark Methenitis 
{ Sep 15th 2009 at 1:00AM } 
Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:
The well publicized dispute over the use of an avatar of Kurt Cobain in Guitar Hero 5 has provided a good backdrop to discuss the 'right of publicity.' For anyone who doesn't want to take time to read the stories, here's a summary. Guitar Hero 5 includes Kurt Cobain as an unlockable playable avatar, much like previous titles in the series have done with other rock stars. Shortly after release, Courtney Love expressed her distaste at the use of Kurt, and Activision has stated Love signed an agreement allowing the use. Since then, other former Nirvana members have stated they think the avatar should be limited to performances of Nirvana songs.
Kurt's in-game likeness is governed by the part of the law called the 'right of publicity,' also called the 'right of personality' or 'personality rights.' In the US, that is unfortunately a complicated subject. Unlike other intellectual property rights, the right of publicity is governed by the states, not federal laws. So, unlike copyright or trademark, the exact rules of the right of publicity game change in every state. This, of course, makes the topic difficult to discuss and analyze, but there are some general theories about the right that can be discussed on a universal level.
The right of publicity stems from the theory that any person should have the right to control how their likeness is used by others for commercial gain. In that way, it is similar to a trademark. People may associate a person with quality or other attributes much like they associate a brand name, and thus use of that person's likeness to sell a product ties the two together. This right almost requires that the person be famous. For example, there are many people named Michael Jackson, but only the recently deceased Michael Jackson would likely be able to defend a right of publicity to the name. It is also worth noting that courts will generally differ to use of the name by someone who actually has that name. For example, if another person named Nolan Bushnell opened 'Nolan Bushnell Automotive' or some similar company, their use of their own name would be a defense to an action by the famous Nolan Bushnell in many jurisdictions.
Interestingly enough, the spectrum of personality rights is fairly broad, and not all states grant those rights in the same way. For example, not all states grant continued publicity rights after death. When a person is alive, they hold their own right of publicity for the most part, but passage of that right after death requires either a statute or case law to support the theory. In fact, only 28 states officially recognize the right of personality, with Indiana having what is generally regarded as the greatest protection, extending a full 100 years after death. California and New York are also considered to have strong rights of publicity.
In addition, aspects of the personality beyond the physical likeness, name, and voice may also be protected by the right of publicity. Indiana includes things as far reaching as the signature, mannerisms, gestures, or even distinctive appearances. In two different cases, California held that robots infringed on the rights of publicity for Vanna White and George Wendtand John Ratzenberger.
So what about this Activision issue? Courtney Love is, as far as I understand it, the holder of the right of publicity for the estate of Kurt Cobain. Of course, if what Activision says is true and they have a license to use Kurt's likeness in the game, then the contract's terms will govern whether what Activision has done is within their license. If not, then it is almost certain that Courtney Love will be able to bring an action within a jurisdiction that will be favorable to her position, holding the rights to Kurt's license. I've seen a number of comments stating that they think the former band members' position is reasonable, which it is unless the license agreement says otherwise. That's not to say that without a license, Activision would be able to use Kurt's likeness for Nirvana tracks; it's almost certain the license for the music contains no such provision.
I do find it rather curious that this issue is treated differently for Kurt than other deceased artists. Jimi Hendrix was in World Tour without criticism. Is it because Kurt's death is far more recent that people feel differently? Is this just a by-product of Courtney Love's outburst more than anything else? It's difficult to say. The public's reaction, however, does little to change the actual rights involved. Either Activision had a license or they didn't, and if they did not, it would be interesting to hear the legal theory they're claiming as to use of Kurt's likeness. It's entirely possible that they do have a contract, and nothing will come of this beyond this outburst.
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.
The content of this blog article is not legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only. Reading this blog, replying to its posts, or any other interaction on this site does not create an attorney-client privilege between you and the author. The opinions expressed on this site are not the opinions of AOL LLC., Weblogs, Inc., Joystiq.com, or The Vernon Law Group, PLLC. As with any legal issue that may confront you in a particular situation, you should always consult a qualified attorney familiar with the laws in your state.
Kurt's in-game likeness is governed by the part of the law called the 'right of publicity,' also called the 'right of personality' or 'personality rights.' In the US, that is unfortunately a complicated subject. Unlike other intellectual property rights, the right of publicity is governed by the states, not federal laws. So, unlike copyright or trademark, the exact rules of the right of publicity game change in every state. This, of course, makes the topic difficult to discuss and analyze, but there are some general theories about the right that can be discussed on a universal level.
The right of publicity stems from the theory that any person should have the right to control how their likeness is used by others for commercial gain. In that way, it is similar to a trademark. People may associate a person with quality or other attributes much like they associate a brand name, and thus use of that person's likeness to sell a product ties the two together. This right almost requires that the person be famous. For example, there are many people named Michael Jackson, but only the recently deceased Michael Jackson would likely be able to defend a right of publicity to the name. It is also worth noting that courts will generally differ to use of the name by someone who actually has that name. For example, if another person named Nolan Bushnell opened 'Nolan Bushnell Automotive' or some similar company, their use of their own name would be a defense to an action by the famous Nolan Bushnell in many jurisdictions.
Interestingly enough, the spectrum of personality rights is fairly broad, and not all states grant those rights in the same way. For example, not all states grant continued publicity rights after death. When a person is alive, they hold their own right of publicity for the most part, but passage of that right after death requires either a statute or case law to support the theory. In fact, only 28 states officially recognize the right of personality, with Indiana having what is generally regarded as the greatest protection, extending a full 100 years after death. California and New York are also considered to have strong rights of publicity.
In addition, aspects of the personality beyond the physical likeness, name, and voice may also be protected by the right of publicity. Indiana includes things as far reaching as the signature, mannerisms, gestures, or even distinctive appearances. In two different cases, California held that robots infringed on the rights of publicity for Vanna White and George Wendtand John Ratzenberger.
So what about this Activision issue? Courtney Love is, as far as I understand it, the holder of the right of publicity for the estate of Kurt Cobain. Of course, if what Activision says is true and they have a license to use Kurt's likeness in the game, then the contract's terms will govern whether what Activision has done is within their license. If not, then it is almost certain that Courtney Love will be able to bring an action within a jurisdiction that will be favorable to her position, holding the rights to Kurt's license. I've seen a number of comments stating that they think the former band members' position is reasonable, which it is unless the license agreement says otherwise. That's not to say that without a license, Activision would be able to use Kurt's likeness for Nirvana tracks; it's almost certain the license for the music contains no such provision.
I do find it rather curious that this issue is treated differently for Kurt than other deceased artists. Jimi Hendrix was in World Tour without criticism. Is it because Kurt's death is far more recent that people feel differently? Is this just a by-product of Courtney Love's outburst more than anything else? It's difficult to say. The public's reaction, however, does little to change the actual rights involved. Either Activision had a license or they didn't, and if they did not, it would be interesting to hear the legal theory they're claiming as to use of Kurt's likeness. It's entirely possible that they do have a contract, and nothing will come of this beyond this outburst.
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.
The content of this blog article is not legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only. Reading this blog, replying to its posts, or any other interaction on this site does not create an attorney-client privilege between you and the author. The opinions expressed on this site are not the opinions of AOL LLC., Weblogs, Inc., Joystiq.com, or The Vernon Law Group, PLLC. As with any legal issue that may confront you in a particular situation, you should always consult a qualified attorney familiar with the laws in your state.
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Reader Comments (Page 1 of 2)
Temidien @ Sep 15th 2009 1:08AM
Like anything else, if he is portrayed in a *tasteful* manner pertaining to his career as a musician, I don't understand how anyone could be upset by his likeness being used in a video game celebrating a genre of music he was a part of. Now if his avatar is used in silly story elements, I could understand the outrage.
sonicspike41 @ Sep 15th 2009 1:17AM
He can be used to play any song from any of the bands in the list. You can have him sing along to metal, pop, or any of the other genres of music included.
It's actually a little funny after seeing videos of it on youtube.
Heh @ Sep 15th 2009 1:32AM
You can have him sing "SHOT through the heart, and you're to blame, you give love..a bad name". :(
Ridgecity @ Sep 15th 2009 4:52AM
He is considered a legend, and as a non-living legend, he will have every type of merchandising they can profit from with his face all over it.
All old grungers here are angry at this, sometimes, us fans idolize these people and make a cartoon out of them, "they would never sell out like this, dude, they have dignity" while Courtney love made a ton of money for it and the other Nirvana members seem to be ok with him being a playable character, as long as you can only play with him on their songs. The moment you are making your first demo song, you are ready to sell out, once you see it from he inside, you may grow some balls and have some opinions, but only a few are willing to risk their lives of glamour for their fans.
And sadly, you guys seem to believe Nirvana was against mercantilism yet sold t-shirts, stickers, notebooks, posters, coffee mugs, bobble heads, made music videos, payed their respects to MTV by appearing in their shows, everytime they could, and demanding sponsored tours that took a big toll in their lifes in exchange for buckets of money. here's form the Beavi and Butthead wikipedia page:
"Nirvana's Kurt Cobain is said to have been ecstatic at having the video for "Smells Like Teen Spirit" praised by Beavis and Butt-head, and deemed it a great compliment. Indeed, even when drummer Dave Grohl's next band, Foo Fighters, was reviewed (the song was I'll Stick Around), the two were positive about the song because Grohl "was the drummer from that band, Nirvana" (though they repeatedly mispronounced their name as "Nivarna")".
If you wanna see an example of a rock band sticking it to the man search "Pearl Jam", they sacrificed their careers because they stood up against the business.conglomerate profiting from them, funny that same page of Beavis and Butthead mentions this:
"Beavis and Butt-head seemed to be fans of most of the Seattle Grunge bands of the era; including Alice in Chains, Nirvana, and Soundgarden (but notably, they never viewed any Pearl Jam videos). Four videos by Alice in Chains and Soundgarden were featured on the show with notable praise from the duo, two Nirvana videos were also featured."
At least that's my opinion, we grungers are already hitting 30s and 40s, I'm already semi-insane in the membrane.
WINterfang @ Sep 15th 2009 11:06AM
I hate to interrupt you but Beyonce had once of the best videos of all time.
rahmenxnoodles69 @ Sep 16th 2009 9:04PM
Not to leech off your comment or anything man but I want as many people to see this as possible.
ATTENTION FANS OF NIRVANA AND KURT COBAIN
Kurt Cobain never committed suicide.
Go to www.cobaincase.com and support Tom Grant.
We need this case reopened, there was too much corruption and negligence surrounding the initial investigation. Evidence proves that suicide was impossible.
Please do something to support the reopening, people.
This is a 15 year old travesty of justice.
The Baron @ Nov 7th 2009 6:13AM
You can't say that just because there isn't absolutely conclusive evidence towards suicide that he didn't. Sure, it's a little weird and everything, but it's still a possibility that he just did what everyone thought he did.
JewUnit666 @ Sep 15th 2009 1:12AM
sell the contract for food, he is truely missed
Nap @ Sep 15th 2009 10:06AM
I see what you did there
whylekat @ Sep 15th 2009 1:14AM
I think it's mainly cause how publicly adoment Cobain always was about "the man" and selling out to "the system."
eipxen @ Sep 15th 2009 1:27AM
I think Cobain was, in general, more vocal about his distaste for various things, where Hendrix was not well known for vitriol. Where Kurt was against anything he thought, for lack of a better term, "phony," he was also publicly opposed to Nirvana's ideas and images being used in ways he thought were wrong (perhaps this is an extreme, but people raping a woman while singing "Polly" purportedly got to him)
Honestly... I think the fault may be with Courtney Love, who seems to use the rights to Nirvana's catalogue more freely than some would like (though it does not seem out of character, and ironically the perverted way in which Nirvana is now used in media, along with Nirvana fans' anger, is almost appropriate); I myself was a bit disappointed when "Breed" was in "Shoot 'em Up," despite liking both the movie and the song. I certainly did not like hearing it in a baseball game commercial.
Jonny @ Sep 15th 2009 1:15AM
Kotick laughs at your silly lawsuit.
Bobby Kotick @ Sep 15th 2009 9:03PM
Ha...
Tiptup300 @ Sep 15th 2009 1:16AM
you could only play jimi hendrix songs with jimi
Apollo @ Sep 15th 2009 1:22AM
That's what I don't understand, truly.
If the Jimi Hendrix estate had it their way to secure hendrix in only his songs, why didn't Love do the same with Kurt?
eipxen @ Sep 15th 2009 1:28AM
I wouldn't really mind playing other guitar-based songs with Jimi though; he's pretty famous for, among other things, just being really goddamn good at guitar.
WINterfang @ Sep 15th 2009 10:44AM
Because love is a crazy bitch.
Badum-pish.
Mica @ Sep 15th 2009 1:35AM
1) you could only play jimi hendrix songs with jimi
2) Nirvana is almost as famous for their grunge image associated with fighting the man and hating selling out as they are for their music. It's even arguable that Nirvana's sudden rise to fame and commercial success is largely what led to the singer's eventual suicide.
That's why this resonates so loudly with fans.
Bob @ Sep 15th 2009 4:52AM
Kurt did sell out. He purposefully changed album art just so Wall Mart would carry it, because he was afraid kids wouldn't be able to listen to his music otherwise.
Emblazin @ Sep 16th 2009 10:49PM
@ Bob
When did "selling out" become "Not extreme album art?" Who gives a shit its album art!
Kyattsuai @ Sep 15th 2009 1:46AM
It is now Courtney Love's duty to completely drain Activision.
[ArchiGamer] @ Sep 15th 2009 1:50AM
A crazy bitch sucking off the complete dick that is Kotick?
We want to ruin him, not give him a reward.
Bobby Kotick @ Sep 15th 2009 9:02PM
Go fuck yourself.
Enosoma @ Sep 15th 2009 2:01AM
Excellent headline.
CrissCross87 @ Sep 15th 2009 2:06AM
Love vs Kotick
kinda reminds of the tagline for Alien vs Predator "Whoever Wins, We Lose"
I just don't get her problem about being vocal once the game comes out. probably some kind of publicity stunt. That, or she is a crazy bitch
Meh286 @ Sep 15th 2009 2:15AM
Kurt Cobain was fully against selling out. If he were alive today i don't believe he would have even wanted his character in the game in the first place. This is why fans and (even though i hate) Courtney Love are getting upset.
I think this is Courtney Loves fault anyways. Shes the one that read and signed the contract. She prolly just wanted the money, so she singed away Kurts image. Now that the games out so fans and former band mates see that Kurt is in the game and now are upset over it, Courtney will take their side so she can protect HER image, or whats left of it.
warrenEBB @ Sep 15th 2009 6:43PM
Isn't it to some degree Activision/neversoft's fault for BUILDING IT INTO THE GAME?
I'm suprised everyone is angry at Courtney Love, who likely doesn't play these games and didn't know what was possible.
People should furious with the game's creators for having no respect for the artists they're portraying.
it's weird to me that everyone seems to be saying "ah, well, guitar hero has no soul. you know, whatever. they're like a mad dog, and others should keep them in check."
ecco6t9 @ Sep 15th 2009 2:41AM
She either didn't fully read or didn't fully care to understand the fine print.
Misfit Toy @ Sep 15th 2009 2:58AM
Bottom line is with contracts...doesn't matter if you read it or not...you signed. If you didn't read it guess whose fault that is?
Aaron @ Sep 15th 2009 3:56AM
Did you perhaps mean "defer" instead of "differ" in the third paragraph?
Jammer @ Sep 15th 2009 4:02AM
Kurt wouldn't have liked it, but he gave up his rights to his image when he shot himself in the face. I see no real problem with him being in the game the way it is.
JeezWhiz87 @ Sep 15th 2009 9:27AM
Well put. +1
cynic79 @ Sep 15th 2009 8:17AM
Well said Ryan, well said. I will go buy a $10 polo.
Sidebuster @ Sep 15th 2009 8:25AM
It's funny when commenters say, "Kurt wouldn't like it" like they were butt buddies in school or something. In the end, you guys have no idea what he did or didn't want. People are even so sure that he committed suicide, but the only reason they didn't investigate it further is because they said the door to the green house was locked from the inside and they had to break the door to open it. Even though the private detective Cortney hired said it was a push button lock that could have been pushed and closed and locked that way.
After the first article here I wanted to read more about his suicide. so I went to http://justiceforkurt.com/ and read all about it. Did you know Cortney's bass played died from a heroine overdose the same day she was all packed an leaving the band? Some shit doesn't add up and I'm not the kind of person that takes things without first at least reading up about it.
WINterfang @ Sep 15th 2009 10:48AM
Do you know that Elvis is alive?
http://www.elvis-is-alive.com/
What? I'm not crazy!! COOKU FOR COCOA PUFFF COOKU FOR COCOA puff!!
Sidebuster @ Sep 15th 2009 11:04AM
hey, you never know!
BUBA-HOTEP!
The Dark Wayne @ Sep 15th 2009 8:33AM
Wait wait, there are robots of Cliff and Norm?!
ChomskyKnows @ Sep 15th 2009 9:27AM
yep. that's the biggest thing i took out of this article. ROBOTS ARE AMONG US!
WINterfang @ Sep 15th 2009 10:54AM
Whatever you do, don't type about:robots on your firefox url.
bongoes the Black Lantern @ Sep 15th 2009 3:16PM
WINterfang, that is the coolest thing ever.
JeezWhiz87 @ Sep 15th 2009 9:30AM
Well, no one has to worry about me besmirching Kurt's image by playing Bon Jovi with him. I'm not buying this activision drivel, and even if I did I wouldn't want to play as Kurt Cobain anyway.
Misframed @ Sep 15th 2009 9:45AM
I'm with you... I do not want to give Activision any of my $$$...
RogueFace @ Sep 15th 2009 9:53AM
Activision is a business, and they've been around for a while. I would assume that they wouldn't have included his likeness if they hadn't obtained the legal right to do so. If Courtney Love actually cared about this and was upset by his inclusion in the game, it would have come up shortly after she was contacted by Activision. The only reason it's coming out now is because she's only ever in the limelight because she's a crazy drug-addled whore and she'd like to win over some of the hardcore Nirvana fans who think they knew the guy.
The only reasonable people in this whole thing have been Grohl and the other guy from Nirvana who faded away shortly after Cobain died. Suggesting that he only be usable on Nirvana songs makes perfect sense, and would probably shut everybody up.
Also, he's dead. Who cares if his likeness is in a game where he's doing what he loved to do (even if he IS playing/singing songs he'd never have touched)? It's not like they put him in an American Idol game as a judge. Or had him working at a record label to manufacture new crap-pop. And, as he is dead, he no longer has an opinion, and thus does not care one way or the other about being in the game. Discussion of "he would have liked this" or "he would have hated this" is stupid and a waste of time. The point is moo.
Rocket Raccoon @ Sep 15th 2009 10:29AM
Isn't Johnny Cash in this game as well?? I've barely played the game but I can imagine he would be unlockable as a character as well? And his death is quite recent. I personally hated his music but I think he should be treated with the same respect as Cobain...
commonperson @ Sep 15th 2009 10:31AM
Okay, let's clear a couple of things up. Personally I'm as displeased with the use of Johny Cash as Kurt Cobain, both of which were vehemently opposed to the exploitation of art and the "corpratization" of the industry. Now Cash did go through a pretty prolific comercial period but has been consistently more interested in message (be it human rights abuses or his Christianity since getting clean) than the commercial aspects. But a recurring theme that seems to be popping up very frequently is the concept of "selling out."
Selling out is a very dangerous term to use because what one person terms as selling out another person may not see at all. The fact of the matter regarding Kurt is he used his popularity as a spring board for his message, he was famously contrary (read up on the Rolling Stone photo shoot the band did.) Just because an artist signs with a major label does not mean they are selling out, they are trying to bring their art to an audience. You have to remember also during the 90s when Nirvana found fame this was before the prevelance of major indie labels that we find today and WELL before the distribution methods even existed to allow for it. They were signed to Sub Pop for years with little penetration in finding a wider audience. Critical success is wonderful but if you want to share your music and your message you have to find a greater voice. They did that through the deal with DGC/Geffen.
Now, this becomes a question of interpretation, is this "selling out" or is this finding a greater voice and I think in the end that comes down to a matter of respect. I mean by the time John Lennon started on his most vociferous preaching of Love and Peace not War he was already established as a famous voice and could do no wrong (it would be like if Justin Timberlake all of a sudden turned in to a peace activist.) No one considers this selling out because it was an evolution of his personality, this is the analog that Cash follows and Cash's utter disdain for the establishment has been front and centre much of his career. But then you have people like Bono to whom Cobain more acurately matches. From the start of Bono's career he's been an activist speaking out against violence and political intollerance, Cobain likewise was, from the start, outspoken. The problem here is when you try and make your message more readily available you run the risk of the "sell out" factor rearing it's ugly head.
Frankly I find the phrase one of the most silly things ever. It's wonderful to consider your self an artist and work in this closed, insular environment creating art for art's sake. But at the end without a beholder to enjoy it there is no purpose served and art without a purpose is the greatest waste of all.
Mr. Bungo @ Sep 15th 2009 10:51AM
As noted above, the digital Jimi Hendrix could only play on his tunes. There was no chance that we'd see something like the infamous Youtube video of the digital Cobain belting out Bon Jovi songs.
But that said, there was some amount of distaste about digital Hendrix expressed when GH: World Tour came out. There was some discussion on several forums as I recall. It was just a lot milder by far than the Cobain outcry, which is driven by things like that absurd video, and Cobain's well-known anti-corporate attitude that others have mentioned.
Frankly, I'm not a fan of dead rock stars in GH. Fake Jimi Hendrix coming out on stage just creeped me out. A deceased artist has no say in the matter, and without a bit of taste and tact on the part of the developer, the exploitation of their image can get pretty crass, as it has with Cobain. A far more palatable option is something like Beatles Rock Band, in which digital versions of John Lennon and George Harrison are presented with respect, and are only depicted singing their songs in a game that seeks to celebrate their work.
Mackenzie @ Sep 15th 2009 11:30AM
I think it has more to do with the reveal videos of the previous artists, who were doing their own songs and that's that.
The Cobain announcement, he's singing Bon Jovi and dancing around with the 360 Avatars included in game, which weren't shown in the previous videos. Now, this won't be quite the issue on the Wii and PS3, so just disable 360 Avatar use so you don't have Kurt fronting a band of cartoon midgets singing "You Give Love A Bad Name."
karmaghost @ Sep 15th 2009 3:38PM
Man, if Kurt Cobain was alive today, he'd probably want to shoot himself in the head for how they are using his image in Guitar Hero.
Crono (NDF - Knight of the Old School) @ Sep 15th 2009 10:05PM
I lol'd
Cody @ Sep 15th 2009 10:20PM
I think no matter what actually happened with the signing/not signing away of Cobain's image, most of us can agree that Activision and Neversoft made a poor judgment call using his likeness in this way. This was not a respectable way for someone to be remembered in a game, same goes for Cash and Hendrix and anyone else whose image is used in this fashion. I think Cobain really sticks out to us though because he is still a very relevant artist more than 15 years after his death. For a game that should be trying to honor these rock legends this shows very poor taste.