When Publicity Rights Meet Gamers

Gamers can be an interesting bunch.  Some very bright and talented people sometimes spend an inordinate amount of time trying to find hidden secrets and Easter eggs within games that they play.  Occasionally, this involves finding glitches or little hidden secrets intentionally left by the developers for players to find (one of my favorites, from Morrowind, is a trick that lets the user change the sword Goldbrand into the better Eltonbrand).  Sometimes, enterprising individuals find things that the developer never wanted anyone to see (Grand Theft Auto‘s Hot Coffee controversy is a great example of that phenomenon).

Recently, the game Beyond: Two Souls found itself in a controversy over content they never intended anyone to see.  The game contains a character voiced by and modeled after actress Ellen Page, including some shower scenes edited to avoid showing particular parts of Page’s character.  Someone used a debug Playstation 3 (a special model designed to let developers test out incomplete versions of their games) to alter the camera angles in the shower scenes in order to see the Page character naked.  These individuals then proceeded to post the pictures on the internet.  Sony proceeded to threaten legal action against websites that did not take the pictures down.

While the subject matter is a tad tawdry, the legal issue posed here is fascinating (with a potentially complex web of liability).  Whose rights have, in fact, been violated in this case?  If so, what sort of remedies would be available to the injured parties?  The two most obvious issues defining the rights of the parties are probably Page’s contract with Sony (the game’s publisher) and the End User Licensing Agreement (EULA) for the game.  In regard to Page’s contract, many celebrities have no nudity clauses in their contracts.   However, this particular instance is tricky.  The 3D model is not Page herself, but a representation of a character based on Page’s appearance.  Assuming Page did not model naked for the shower scenes in the game, the 3D representation of the character is an artist’s independent creation as inspired by Page.  That nuance may not be accounted for in Page’s contract.  However, the lack of a clause specifying that the 3D model specifically be a representation of Page may not matter in certain jurisdictions.  California, for example, has laws protecting an individual’s representation in artistic works (called publicity rights).  As the NCAA v. Hart case illustrates, the image in the game does not necessarily have to be an exact duplicate for the plaintiff to prevail in the case.  It’s hard to know exactly whether Page could prevail in any suit against Sony over these images, but it’s an interesting issue to ponder.

The EULA also presents an interesting legal quandary.  EULA’s often limit the rights of users to access the game’s code.  For example, Rockstar Games (the makers of the ever-popular Grand Theft Auto games) prohibits reverse engineering, decompiling, or disassembling their games’ code in their EULA. However, the EULA in this case would only determine that these pictures (acquired by manipulating the game’s camera in a special debugging mode) were acquired in circumvention of the EULA.  Unless these news sites were bound by similar agreements, Sony wouldn’t have any grounds to take legal action against these sites for making these pictures available.

My guess is that Sony has very few grounds for legal action in this case.  That doesn’t make the situation any less fascinating to me.   This situation would not have emerged a few years ago, when 3D technology was significantly more primitive.  Making recognizable recreations of famous people would have been very difficult, and likely would not have touched on personality rights in such a roundabout manner.  I would be very interested to see how a judge would rule if this case ever came into court.

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