An interesting question: how far should a person’s right to their likeness and story go? Here’s iO9’s take on it.
The case referenced is about EA not obtaining rights of a player in a college football video game, but still benefitting from his likeness without permission for its NCAA Football game series.
On the one hand, iO9’s argument that this could put a chill on movies like Rock Star and Boogie Nights, both of which tell a fictionalized version of their respective stories based on particular individuals (Tim “Ripper” Owens of Judas Priest and John Holmes, respectively), might not stand up to this scrutiny.
On the other hand, if a TV show or video game is making money off of your story and your likeness – that is your face, mannerisms, catch phrases, etc. – should they really be allowed to do so without compensating you?
Where this becomes most concerning, I would imagine, is in the unauthorized biography world. I suppose, besides the argument about being transformative (which was used by the court), you’d have the possibility of asserting that you are doing the work of news. If I write a biography of you without your permission, presumably I’m illuminating information that is of value to society in some way; I’m doing a public service. I imagine that The Social Network could successfully make that argument.
I think where EA failed was that their product wasn’t providing any education for the user, or intrinsic informational value to society at large in the way a biography would. Instead, they simply lifted a person’s identity and benefitted from it financially, without creating any educational value. There was no parody, either (which could be argued for the aforementioned Mark Wahlberg films). And therefore, that argument might not be applicable to other content.
It does seem, though, that in today’s world, copyright and intellectual property (IP) are becoming more and more important and respected. With the advent of image search that can find your face in photos and surely video, can it be long before people who haven’t given permission to be in a film or TV show come after producers for including them in footage? I have a friend who argues that: he says that as a SAG actor, you need to pay him to have him in your YouTube video. And I have some sympathy for his argument. Just imagine you were caught on video saying something stupid and that became viral, earning the video poster money off of your stupidity. Should you get no benefit just because you were on a public street? Just because people want to view it, does that make it news? And do you have to officially be a journalist to be afforded that protection? And what if you really are just trying to make money, and aren’t in it for the news value? Should that enter into it?
On the other hand… Rosebud.
[edit: Mark Wahlberg’s character in Rock Star was originally mislabeled as being about guitarist Glenn Tipton of Judas Priest. Instead, it was representing Tim Owens. However, the image of Tipton was kept in because… I liked it.]
Eliot has been orbiting show business for over 20 years as an improv comedian, video director, and general guy you might barely recognize. Currently best known for his work on the comedy podcast Never Not Funny: The Jimmy Pardo Podcast. He wrote previously for MacEdition.com, and is working on a collection of short sci-fi and weird tales that will probably be published someday. He is also one of three principals in Modest Games.