2nd Circuit Court of Appeals Rules in Favor of Sega in “Publicity Rights” Case - Kirby v. Sega

  Text of Kirby v. Sega (Sept 25, 2006)
The 2nd Circuit Court of Appeal has held that Sega has a First Amendment exception defense to a right of publicity claim made against it in the context of a game character that shared similar traits to a real-world celebrity. 

Sega created the video game Space Channel 5 featuring a character named Ulala, a reporter who wears a short skirt and platform boots and has pink hair - all of which are physical similarities to the former lead singer of the 1990s funk band Deee-LiteKirby - Kieren Kirby. 

In this ruling the court held that Sega had passed the "transformative" test set out in the earlier Comedy III Productions v. Gary Saderup case by ‘adding something new, with a further purpose or different character, altering the first with new expression, meaning, or message." Specifically:

If the “product containing he celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression” of what he or she is trying to create or portray, rather than the celebrity’s likeness, it is protected. 

In applying the test to the facts of the case, Justice Paul Boland concluded:

Ulala is more than a mere likeness or literal depiction of Kirby. Ulala contains sufficient expressive content to constitute a “transformative work” under the test articulated by the Supreme Court. First, Ulala is not a literal depiction of Kirby. As discussed above, the two share similarities. However, they also differ quite a bit: Ulala’s extremely tall,slender computer-generated physique is dissimilar from Kirby’s. Evidence also indicated Ulala was based, at least in part, on the Japanese style of “anime.” Ulala’s typicalhairstyle and primary costume differ from those worn by Kirby who varied her costumesand outfits, and wore her hair in several styles. Moreover, the setting for the game thatfeatures Ulala – as a space-age reporter in the 25th century – is unlike any public depiction of Kirby. Finally, we agree with the trial court that the dance moves performed by Ulala – typically short, quick movements of the arms, legs and head – are unlikeKirby’s movements in any of her music videos. Taken together, these differences demonstrate Ulala is “transformative,” and respondents added creative elements to createa new expression.

According to this FindLaw.com the Kirby case is at odds with a prior Missouri Supreme Court case setting up a possible Supreme Court challenge.

Sources: The Legal Reader | FindLaw.com | Fenwick & West | The Hollywood Reporter | MetNews | Davis & Co.

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