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Category — Personality Rights Cases

Forbes: Why Gears of War Costs $60

Categories: Character License CasesFeatured ArticlesPersonality Rights CasesStartup Game Developer IssuesTrademark Cases

Forbes provides this article and interactive pie chart explaining/breaking down the cost structure of modern video games such as the blockbuster Gears of War:

Read Forbes Article

View Interactive Pie Chart

Here’s a Summary of the Interactive Pie Chart:

  • 25%/$15 – Art Design
  • 20%/$12 – Programming and Engineering
  • 20%/$12 – Retailer’s Cut
  • 11.5%/$7 – Console Owner Fees (to Microsoft/Nintendo/Sony)
  • 7%/$4 – Marketing Costs
  • 5%/$3 – Marketing Development Fund (print circulars/banner ads, etc.)
  • 5%/$3 – Manufacturing Costs, Packaging
  • 5%/$3 – Licensing Fees (personality rights, character and story licenses, copyrights, trademarks, etc.)
  • 1.5%/$1 – Publisher Profit
  • 1.5%/$1 – Distributor Fees
  • 0.3%/20¢ – Corporate costs (management, overhead, legal fees Wink)
  • 0.05%/3¢ – Hardware Development Costs (Developer kits, demo units etc.)

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

Categories: DecisionsPersonality Rights Cases

  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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Judge Rules Sports Statistics are Not Intellectual Property

Categories: Copyright CasesPersonality Rights Cases

Text of Decision
CBC Distribution was denied a new licensing agreement with MLB’s players’ association. CDC sued them for the right to use the player profiles and statistics. U.S. District Court Judge Mary Ann Medler has concluded that “The names and playing records of major league baseball players as used in CBC’s fantasy games are not copyrightable. Therefore, federal copyright law does not pre-empt the players’ claimed right of publicity.” The MLBPA is appealing.
Sources: Sports Illustrated  |  L.A. Times  |  ars technica  |  New York Times  |  San Jose Mercury News (AP)  |  USA Today  |  BBC  |  Contra Costa Times  |  Reuters  |  Washington Post  |  PC Magazine  |  MLB Player’s Association Statement  |  IPTABlog  |  William Patry  |  Cathy Kirkman

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NFL Sued by John Facenda’s Family for Use of Voice

Categories: Personality Rights Cases

John Facenda Jr. has sued the NFL over the use of his deceased father’s legendary voice in the making of a program entitled “The Making of Madden 2006″. The league contents use of Facenda’s voice is allowed so long as it does not constitute a product endorsement. The Facenda family contends the 30 minute film was a “30 minute commercial for the Madden game.”
Sources: GamePolitics.com  |  Bloomberg  |  Northwest Herald  |  Post Gazette  |  NBC 10  |  Philly.com  |  FoxSports (AP)

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World Poker Players Sue Over Use of Likenesses & Names in Video Game

Categories: Personality Rights Cases

Seven World Poker Tour players announced their intent to sue WPT Enterprises over the use of their likenesses in the WPT video game. Players argue they were unfairly forced to sign a waive their rights in order to enter the poker tournament.
Sources: L.A. Times  |  Law.com  |  Mercury News  |  WPT Response to Complaint  |  Las Vegas Sun (AP)  |  Trading Markets  |  Yahoo! Finance  |  Gaming News  |  Review Journal

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Roger Hill Sues Take-Two Over Use of Likeness without Consent

Categories: Personality Rights Cases

Roger Hill is suing Rockstar and Take-Two for using his likeness in the video game tie-in which was released for PS2 and Xbox last year. He is seeking a payment of $250,000 plus an order to restraining the use of his likeness. Take-Two claims it has a valid third party license to use the likeness.
Sources: GameIndustry.biz 1  |  GameIndustry.biz 2 (possible criminal indictment)  |  EuroGamer  |  Spong  |  Ferrago  |  Pro-G  |  IGN  |  Next Generation  |  Gamasutra  |  GameDaily.biz  |  CVG  |  1Up.com  |  GameSpot  |  joystiq

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New Face of Laura Croft – Karima Adebibe

Categories: HumourPersonality Rights Cases

OK, OK, I acknowledge that this is not a legal news story – but can you blame me for covering it :) ?

Sources: Team Xbox  |  Joystiq  |  SPoNG  |  Kotaku  |  EuroGamer  |  Tomb Raider Chronicles  |  Sydney Morning Herold  |  Pocket-Lint  |  CVG  |  1Up.com
Note: Angelina, you’ll be missed!

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Mike Sigel Sues for use of Likeness in Virtual Pool 2

Categories: Personality Rights Cases

Hall of Fame Pool Player Mike Sigel filed a lawsuit today against computer game manufacturers, Interplay Entertainment Corp and Celeris, Inc., for using his name and likeness without his permission.

Source: PR Newswire

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‘Ollie’ Skateboarder Sues Game Companies Over Use

Categories: Personality Rights CasesTrademark Cases

Veteran skateboarder Alan “Ollie” Gelfand has sued Disney Interactive, Sega and various skateboard-related companies over what he claims to be trademark infringement of his nickname, and is seeking over $20 million in damages.

Sources: Gamasutra  |  GameDaily |  Miami Herold  |  Florida Today  |  Gainesville.com

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Pernell Harris Sues EA over Features in Madden 06

Categories: Personality Rights CasesTrade Secret Cases

Harris claims that EA is in breach of an “implied in fact contract” and a confidentiality agreement by using his idea for the NFL Superstar mode in the game without compensation. The mode allows the gamer to take day-to-day control of an NFL player both on and off the field. He says the idea stems from a confidential pitch he made to EA in 2004.

Sources: Gamasutra.com  |  Next Generation  |  GameSpot  |  Reuters  |  ZDNet

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‘Vili the Warrior’ Settles with E.A.

Categories: Personality Rights CasesSettlements

Viliami Fehoko (Vili) and E.A. have settled Fehoko’s earlier claim of using his character without compensation in E.A.’s NCAA Football 06 for an undisclosed amount of money, and the game will continue to be sold with Vili the Warrior in it.

Source: Game Politics | KHON2

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‘Vili the Warrior’ Battles EA in Court

Categories: Personality Rights Cases

Viliami Fehoko, the man behind the menacing war paint of Vili the Warrior, says that EA never obtained his permission nor paid him compensation for the use of his Vili character as a featured mascot in NCAA Football ’06. According to the article, Fehoko has claimed $75,000 in damages.

Source: GameSpot | Hawaii Channel | Joystiq | Game Politics | Times Online

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Character Licenses

Categories: Character License CasesCopyrightsFeatured ArticlesIndustry ContractsPersonality Rights CasesTrademarks

Marc Mayer, of Mitchell Silberberg & Knupp LLP describes how to avoid the pitfalls of using likenesses of individuals in video games.

Source: NextGen.biz

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Screen Actors Guild Approves New Game Voiceover Contract

Categories: Personality Rights Cases

Members of the Screen Actors Guild (SAG) union overwhelmingly approved a new contract governing their work in the game sector. Voice-over and other performers will receive a 36% boost in wages, beginning with an immediate 25% hike.

Sources: Gamasutra  |  Cathy Kirkman Blog  |  SAG Watchdog  |  SAG Press Release

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Topheavy Enjoined from Guy Game Sales

Categories: InjunctionsPersonality Rights CasesPolice ActionsSexuality Cases

Travis Co. District Judge Suzanne Covington granted a restraining order and, in January, granted a subsequent request for a temporary injunction against Topheavy. As a result, copies of The Guy Game have been removed from store shelves.

Source: Austin Chronicle

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Take-Two, Topheavy, Sony, and Microsoft Sued over Topless Minor in The Guy Game

Categories: Personality Rights CasesPolice ActionsSexuality Cases

A young woman has filed suit against for including footage of her topless, taken during the annual spring break revels on Texas’ South Padre Island, without her legal consent. The woman was only 17 at the time, and therefore legally incapable of giving her consent to be in The Guy Game, let alone half naked.

Sources: Gamespot | EuroGamer | 1Up.com | The Register | XBox Addict | Statesman.com
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Uri Geller To Sue Nintendo

Categories: Personality Rights CasesPolice Actions

Uri Geller, the millionaire paranormalist, is suing the computer giant Nintendo for more than £60m for allegedly using his image in its best-selling Pokemon game without his permission.

Sources: Gamasutra | Guardian Unlimited | The Register | ZDNet UK

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