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UPDATED: Jan 26, 2016
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If someone clearly bases a fictional character on you, what are your rights? If you don’t like the character, can you force them to stop? Alternatively, can you demand compensation for a character that’s based on you?
The short answer is if the character IS clearly “you,” and not just loosely based on you, you do probably have some rights. But if major details are changed such that the character is only loosely based on you, you have no rights.
Freedom of Speech
The First Amendment to the US Constitution guarantees freedom of speech, but there are a number of exceptions to this right. For example, you can’t shout “Fire!” in a crowded theater (if there isn’t actually a fire), you can’t incite illegal activity, you can’t libel someone, etc.
But the starting assumption is you can say what you want, unless it’s specifically prohibited. The Legal Information Institute of Cornell University has useful information on the First Amendment.
Right of Publicity
Under the “right of publicity,” a person has control over the use of his or her name, image, and likeness. Conceptually, it’s like saying you have a trademark in yourself. You are your own “brand,” and others are not allowed to use that “brand” without your permission.
Unlike freedom of speech, which is a federally-granted right protected by the US Constitution, the right of publicity is a state-based right. All 50 states recognize a right of publicity; in 38 states the right is based on common law precedent, and in 22 states there is an explicit mention of a “right of publicity” in the state’s laws.
The Right of Publicity website has a helpful map showing which states have statutes, with links to the statutes for those states that have them.
But what if someone’s using only an INdirect copy of your likeness? That’s where we get into a gray area.
Transformative Use Test
Specifics vary from state to state, but in general there’s what’s called a “Transformative Use Test” that courts use in deciding whether your right to publicity is being infringed.
If the defendant’s use is “merely a copy or imitation,” you have a right to block that usage. On the other hand, if the defendant has made substantial changes, added something new, made a new character that may be similar to you but not identical, etc. such usage would be protected under the First Amendment.
Billy Mitchell versus The Cartoon Network
A recent court case is illustrative.
Billy Mitchell is a real person who is famous in the video gaming community. His color is black: he has long black hair and a black beard, and he typically wears a black suit or black shirt, along with an American flag tie. He has held world-record high scores in a number of video games, including Donkey Kong. He appeared in a documentary called “The King of Kong: A Fistful of Quarters,” which told the story of another gamer trying to topple his record.
The Cartoon Network created an animated TV series called “The Regular Show” featuring a villainous character named Garrett Bobby Ferguson (GBF) that bears a number of similarities to Billy Mitchell. GBF has long black hair and a beard, and a backstory similar to Mitchell’s.
Mitchell’s lawyers claimed that GBF uses “certain expressions and call words which are unique to [Plaintiff’s] persona.” They further claimed that the usage of those features helped the Defendant’s show – by increasing viewership and creating a “realistic villain.”
The court threw the case out. It found that The Cartoon Network’s usage met the Transformative Use Test for the following reasons:
But while GBF may be a less-than-subtle evocation of Plaintiff, GBF is not a literal representation of him. The television character does not match the Plaintiff in appearance: GBF appears as a non-human creature, a giant floating head with no body from outer space, while Plaintiff is a human being. Nor does GBF’s story exactly track Plaintiff’s biographical details. GBF holds the universe record at Broken Bonez; Plaintiff held the world record at Donkey Kong. GBF attempts to maintain his universe record through crying and lying about his backstory; Plaintiff maintained his world record by questioning his opponent’s equipment and the authenticity of his submission of a filmed high score. Plaintiff himself acknowledges that GBF is not a literal representation of him when he states that “[t]he actions of this character . . . make me look like some sort of monster, or creature, with no heart or decency. This is simply not me.”
For another example of a fictional representation of a real person leading to a lawsuit, see my blog on the movie What Maisie Knew.