Two singers. Both pursuing claims that their images were exploited as avatars in a video game. But whereas Gwen Stefani in 2010 was successful in convincing a California appeals court that Activision's exploitation of her image in Band Hero wasn't transformative fair use, Michael "Shagg" Washington has failed in making that same case against Take-Two Interactive over Grand Theft Auto: San Andreas.
A model and backup singer for the rap group Cypress Hill, Washington sued in 2010 after seeing a character named "C.J." in Grand Theft Auto that looked like him. The 2004 game was a highly profitable one where former gangster "C.J." returns home to find his mother murdered, the police framing him for homicide and the need to take control of the streets.
Washington demanded $250 million in damages -- a probably unrealistic target, but at least there was some foundation for his belief that "C.J." was ripped from his likeness: In 2003, he met with a group of game developers and discussed details of his former street life as a gang member. During the meeting, the game developers were allegedly given Washington's photo. A photo of Washington ended up in the defendant's files. Washington's name has also appeared in the game's credits as a model.
But a judge didn't think the story added up as enough, and now a California appeals court has seconded that, ruling on Wednesday that Washington has failed to establish a probability of defeating Take-Two's First Amendment-based "transformative use" defense.
Washington isn't the first to sue over an alleged violation of publicity rights. For example, there was the former professional model who once won $15 million in damages from a jury after finding his face used on jars of Taster's Choice coffee.
But Washington had trouble showing the a trial judge that it was his face in Take-Two's Grand Theft Auto: San Andreas. He wasn't allowed discovery and the Superior County judge found that Washington hadn't demonstrated that he was the "C.J." character. As the judge said, "Plaintiff is relying entirely on CJ's physical appearance in the game, but that appearance is so generic that it necessarily includes hundreds of other black males."
The judge suggested that Washington would have needed to present evidence like tattoos, birthmarks or other physical features -- or linked CJ's background to his own.
There was also the issue of whether the image used was transformative, meaning that for whatever protected material was used, the game publisher gave new character and purpose to the material.
The test for what's transformative can be tricky to say the least -- especially when it comes to publicity rights.
Since the beginning of the century, California appeals courts have ruled charcoal drawings of the Three Stooges not to be sufficiently transformative, but have determined a comic-book caricature of two real-life musicians as half-human, half-insect to quality as protected.
Avatars in video games present the latest source of confusion on how to look at a law that is supposed to protect people's images and determine whether the exploitation has been fair or not.
It's a legal no-no to take the the literal likeness of a music superstar like Stefani so that game players can have her avatar perform the Rolling Stones' "Honky Tonk Woman" in a male voice. In February, 2011, a California appeals court deemed that not to be sufficiently transformative. (The case recently settled.)
But Washington isn't as lucky. According to the unpublished appellate decision on Wednesday:
"The court in No Doubt concluded that the defendant's literal depictions of the plaintiffs were not transformative because 'the No Doubt avatars...perform rock songs, the same activity by which the band achieved and maintains its fame...[Nothing in the video game] transform[s] the avatars into anything other than exact depictions of No Doubt's members doing exactly what they do as celebrities.' Here, however, Washington has presented no evidence demonstrating that the plot or characters of GTA: San Andreas have any relevance to his life or his purported fame."
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