As advertising agencies and production companies continue to get into the business of producing branded entertainment and other content that doesn’t fall within the traditional definition of “advertising,” they are faced with the challenge of adapting their businesses to meet the demands of these new projects. It should come as no surprise that when you’re creating viral films, television shows, Second Life content or video games, for example, you’re going to be faced with new business, production, and legal considerations.
One of the biggest issues that companies are wrestling with as they expand into different media—particularly when trying to capitalize on pop culture icons, such as celebrities–is what permissions are required when creating something that is not traditional advertising. Do you have more leeway? Does the First Amendment protect you?
The general rule is that written permission is required before you may use the name, picture, likeness or voice of a celebrity (or any other person) for purposes of advertising or trade. This rule has even been extended to protect the “persona” of a celebrity–that is, calling to mind a celebrity without actually using the celebrity. To make it more complicated, these rules vary state-by-state, and there are exceptions as well. Some of the biggest battlegrounds today in this area center around how to define “advertising” and when advertisers and others may use celebrities without their consent.
Video Games and “Ooh La La” A California appellate court recently decided that pop singer Kierin Kiby, also known as Lady Miss Kier, did not have a claim against Sega of America, even if her persona was used in the Sega video game “Space Channel 5.” Kirby was the lead singer of the musical group “Deee-Lite.” Kirby’s look includes platform shoes, brightly colored, tight clothing, short skirts, a bare midriff, words or a number on her chest, and red or pink hair. She is also known to use the phrase, “ooh la la.”
“Space Channel 5” is set in the future, in outer space, and features an animated image of a female reporter named “Ulala.” Like Kirby, the Ulala character is generally shown with platform boots, an orange outfit, a mini-skirt, a bare midriff, the number “5” on her chest, and pink hair. Ulala, like Kirby, is also thin, with similarly shaped eyes and face and red lips. They also both dress in a ’60s style, and use similar phrases such as “groove” “meow” and “dee-lish.” In the game, Ulala investigates aliens and then matches their dance moves. Before the launch of the game in England, Kirby was contacted about using one of her songs or videos to promote the game; she was not interested.
Kirby later sued, essentially claiming that Sega had violated her rights by using her persona in the game.
Although the court recognized that there were differences between Kirby and Ulala, and Sega denied using Kirby as a basis for the character, the court held that there would have to be a trial to determine whether, in fact, Kirby’s persona had been misappropriated. To greatly oversimplify the issues, the court then held, however, that no trial was necessary because even if Kirby’s persona was used, the First Amendment gave Sega the right to use it, because Sega did not merely use Kirby’s image to trade off her celebrity, but to create new and significantly distinctive and expressive content.
Although the Sega case was about mini skirts and platform boots, it took years of litigation to resolve, and another court could have decided it differently and awarded substantial damages. There are no simple lessons to be taken from the Sega case, other than that using a celebrity without permission–or even something that calls to mind a celebrity–is fraught with risk, even when you’re not creating advertising. So, before you start shopping for those platform boots, talk to your lawyer.
This column presents a general discussion of legal issues, but is not legal advice and may not be applicable in all situations. Consult your attorney.
Jeffrey A. Greenbaum ESQ is a partner at Frankfurt Kurnit Klein & Selz, New York. E-mail jgreenbaum@fkks.com with topic suggestions.
