New York Saxophonist Latest To Sue Fortnite Developers For Supposedly Ripping Off His... 'Likeness'

from the business-model-composed-completely-of-question-marks dept

Because there's no shortage of people willing to believe someone else's millions can be theirs with minimal effort, another semi-celebrity has hopped aboard law firm Pierce Bainbridge's Fortnite-suing money train. Destination unknown.

The law firm has helped everyone from former sitcom star Alfonso Ribeiro to a sentient meme known as "Backpack Kid" throw money into a federal court holes over the past several months. Thanks to a recent ruling by the Supreme Court, most of its copyright infringement lawsuits are on hold because the plaintiffs have yet to actually have protection granted for their dance moves by the US Copyright Office.

It's not like this is just a matter of waiting out the Office. The Copyright Office has made it clear it will only extend copyright protection to dance moves showing sufficient creativity. It's not likely to find most of the dance moves being sued over worth protecting as most of them consist of only a "few movements or steps with minor linear or spatial variations." One of the first litigants to jump into the Sue Fortnite pool -- Alfonso Ribeiro -- has already been rejected by the federal government.

Unfortunately, the lawsuits continue, as Nick Statt reports for The Verge.

Fortnite creator Epic Games is facing a lawsuit from New York City-based saxophonist Leo Pellegrino, who claims the developer has used his likeness without permission when designing a saxophone dance in the game. The lawsuit was filed today in federal court for the eastern district of Pennsylvania.

The emote, called “Phone It In,” lets players whip out the brass instrument and play a quick tune while dancing. Pellegrino, best known for his Brass House band Too Many Zooz, says his “trademark moves have become inseparable from his persona and his life story” and that Epic had not previously asked for permission to use his likeness or “his signature moves.”

The law firm apparently submitted this video of Leo Pellegrino performing as evidence of Fortnite's ripoffery.

Firm staffers likely had to browse their way past this video, which seems to show Fortnite's developers are ripping off someone else entirely.

What makes this lawsuit even more sketchy than the others Pierce Bainbridge has filed is it's not a copyright infringement lawsuit. The lack of registration has halted its other lawsuits and, given the Copyright Office's response to one its many clients, it seems unlikely most of these will be refiled. So, Pellegrino is claiming it's his likeness that has been "misappropriated," which is definitely a stretch when the emotes can be performed by dozens of characters that look and dress nothing like Pellegrino. Oh, and also, even the saxophone is different. Pellegrino plays a baritone sax, and the Fortnite version appears to be an alto sax, so they're not even playing the same instrument.

All Pellegrino really has is an assertion that he's a dude who plays a saxophone enthusiastically and Fortnite has an "emote" featuring a different kind of saxophone being played enthusiastically by the player's avatar. Any similarities are probably coincidental, seeing as there's only so many ways someone can play a saxophone with far more enthusiasm than the instrument deserves.

Despite its 100% failure rate in Fortnite lawsuits, Pierce Bainbridge is still finding plaintiffs willing to ensure its partners keep collecting paychecks. And isn't that the greatest victory of all?

Filed Under: alfonso ribeiro, copyright, dance moves, fortnite, lawsuits, leo pellegrino, likeness, publicity rights
Companies: epic, pierce bainbridge

Appeals Court Rules That GTA5 Didn't Infringe On Lindsay Lohan's Likeness Rights

from the now-please-go-away dept

While there are absolutely far too many Techdirt posts featuring celebrity(?) Lindsay Lohan in these pages, most of them deal with one specific issue: her lawsuits against Take Two Interactive. At issue was a character Lohan insisted infringed on her likeness rights because the character is a drunk driver, public-fornicator, and has a backstory as a child actress. If Lindsay wants to insist that her own history lines up with that sort of backstory, I guess I won't argue with her, but the character has many other aspects that clearly have nothing to do with Lohan. Instead, the character is a parody of the sort the GTA series is famous for, with the target in this case being young celebrity stars and starlets. Coming along for the ride was Karen Gravano, who participated in a reality show about the wives of reported mobsters. Gravano sued over another character in the series with her filings essentially mirroring Lohan's. Take Two won both lawsuits, both on First Amendment grounds and due to the court finding that the characters were composite parodies, not representations of either Lohan or Gravano. Both plaintiffs appealed.

And now the New York Court of Appeals has ruled in favor of Take Two again in both cases.

Here, the Jonas character simply is not recognizable as plaintiff inasmuch as it merely is a generic artistic depiction of a 'twenty something' woman without any particular identifying physical characteristics. The analysis with respect to the Beach Weather and Stop and Frisk illustrations is the same. Those artistic renderings are indistinct, satirical representations of the style, look, and persona of a modern, beach-going young woman. It is undisputed that defendants did not refer to plaintiff in GTAV, did not use her name in GTAV, and did not use a photograph of her in that game. Moreover, the ambiguous representations in question are nothing more than cultural comment that is not recognizable as plaintiff and therefore is not actionable under Civil Rights Law article 5.

You can read the full opinion here, but suffice it to say that this should be the end of this nonsense from Lohan. At the same time, the court also ruled on Gravano's appeal, with identical findings.

Concurrently with this opinion comes a loss for ex-Mob Wives star Karen Gravano, who brought a similar lawsuit against Take-Two over the character of "Andrea Bottino" in Grand Theft Auto V. The appeals court fails to see a recognizable image there as well.

That should be the end of that as well. One wonders just how much in legal fees both Gravano and Lohan were billed, with the next natural thought being just how much better such funds could have been used other than to engage in a prolonged legal fight without merit, with almost no chance of success, and over an issue that was not injurious to either party? Lohan in particular has a history of looking for paydays in the form of these types of lawsuits, but it's difficult to see how she could be in the black at this point.

It would probably be best to simply save that money for the future.

Filed Under: grand theft auto, gta, karen gravano, likeness, lindsay lohan, ny, publicity rights
Companies: take two interactive

Paramount Pictures Goes After The Codfather Fish Shop Over A Fish That Looks Like Marlon Brando

from the it's-just-business dept

Before I started paying attention to trademark issues as a part-time living, I'm pretty sure I would have thought that it would take quite a bit to get a big company's lawyers firing off threat letters and legal actions. You know, like an actual threat, or a violation of trademark that had been brought to the company's attention by confused members of the public. Instead, it too often appears that the lawyers for large companies scour the world for any-might-be-possible trademark issue that can be acted upon, like a schizophrenic pouring over the newspapers in search of that secret code the government is using to control our minds.

How else do you explain when Paramount Pictures decides to fire off a cease and desist letter to The Codfather Takeaways fish and chips restaurant in New Zealand because their sign includes a cartoon fish that resembles Marlon Brando?

As part of its signage, The Codfather Takeaways has adopted Brando's Don Corleone character in the style of a fish. Paramount, owner of the trademark The Godfather, is not impressed and through lawyers has instructed the shop to stop. But Danielle Stuart, co-owner of The Codfather, reckons Paramount is being mean spirited and says both the name and insignia are staying. Stuart was in the final stages of registering The Codfather trademark when she received a letter from Paramount Pictures' lawyers opposing the application and also asking them to stop using "The Godfather stylisation".

You can see the signage in the background of this picture of the owners.

When asked, the owners admit to the inspiration the film provided for the name and the signage, but say they're confused why Paramount is targeting them because they sell goddamn fish and not movies.

Stuart said she could understand Paramount being grumpy if she was planning to open a world-wide chain of Codfather Takeaways, but she was not.

"We are just a little fish and chip shop in a small corner of the world."

Not small enough, my dear, because the beautiful minds at Paramount are always searching for any violation. Now, there are a couple issues here. First, nobody anywhere at any time is going to think a New Zealand fish and chips shop is somehow affiliated with a Hollywood movie studio. Sorry, ain't gonna happen. Second, I defy anyone to draw a fish without it looking like Marlon Brando. It can't be done.

And finally, why the hell is Paramount bothering with this to begin with? There are any number of restaurants and chains called "The Codfather." A fish that looks like Brando really makes this one a priority?

Filed Under: codfather, confusion, fish, godfather, likeness, marlon brando, new zealand, trademark
Companies: codfather takeaway, paramount, viacom

Head Transplant Doctor Ponders Likeness Lawsuit Over Supposed Appearance In Metal Gear Solid 5

from the losing-your-head dept

Look, I don't even know where to begin with this, so let's just dive right in. A trailer for the upcoming release of the latest game in the Metal Gear Solid series came out a while back and, for reasons I can't even begin to explain, a whole load of folks out there decided that a doctor that appeared in the trailer looked an awful lot like a real-life Italian doctor. But not just any doctor. This doctor is apparently working on achieving the first ever successful human-head transplant with spinal reconnection.

For almost a week now, some parts of the gaming internet have been going nuts over the visual similarities between the doctor that features in the trailer for Metal Gear Solid V: The Phantom Pain, and the controversial real-live Dr Sergio Canavero, the neurosurgeon who recently found sudden fame when he claimed that he was ready and able to perform the first human head transplant in medical history. He’s even found a prospective patient, a Russian called Valery Spirodonov, who suffers from a terminal muscle-wasting disease.

The images of the character and Canavero, when placed side-by-side, are certainly striking.

Apparently there have been people calling up Doctor Canavero and questioning him about his relationship to the game, of which he claims to have none. Those callers have been spurred on by all kinds of conspiracy theories being drawn up to explain the similarities. TED Talks by the doctor deal with some of the issues and language supposedly appearing in the MGS game, MGS creator Hideo Kojima has talked about how the new game will deal with controversial issues (head-transplants would probably count), and some have even made claims that the doctor isn't a real doctor and this is all just a media stunt (it isn't, Dr. Canavero is a real, published doctor).

Kotaku's UK site got Canavero on the phone and he claimed to have nothing to do with the game or Kojima. As it turns out, Konami used an actor for the character model in question and it's the actor that happens to resemble Canavero. In other words, it's just a weird coincidence. Except Dr. Canavero doesn't think so.

I pointed out his resemblance to the actor from whom Konami actually did the scanning for the three-dimensional model, but he tells me that his lawyer has suggested something different that involves a conference held in Cyprus:

"One of the sponsors was coincidentally a game developer. Maybe some people there...I don't know...maybe they recorded the thing from certain angles, maybe the cameras were set up in the right spots... I do not know. It's just a hypothesis, but maybe it's not too far-fetched."

Cavanero goes on to point out that this isn't such a bad thing, as he's raising money for his HEAVEN project (you know, the whole taking one person's head and sticking it on another person's body thing) and this has brought some additional notoriety to him. That makes this next bit more perplexing:

“I went to the Polizia Postale [the authority in charge of this kind of thing here in Italy] and filed a complaint towards Mr.Kojima. There is also a Twitter account that is not mine, so I reported this to the Police too, they will now investigate both the matters. In the meantime my lawyer is sending a letter to the Japanese company [Konami] to ask for compensation [for using my image without permission].”

Except that it wasn't his image, it was the image of an actor who resembles him. Some people look alike, for better or worse. In any complaint resulting in a court case, it would seem to me that Konami and Kojima need only trot in the actor around which they built the character model and that should be it. Why it should even have to get that far, considering that Cavanero can't stop talking throughout the interview about how beneficial this whole coincidence has been, is beyond me.

Filed Under: head transplant, hideo kojima, likeness, metal gear solid, publicity rights, sergio canavero
Companies: konami

Lindsay Lohan Moves Forward With Lawsuit Against GTAV

from the dragging-yourself-through-the-muck dept

And we're back with another episode of Lindsay Lohan Sues People For Stuff They Didn't Do. It's been a while, so you may not remember that Lohan, who has been quite lawsuit-happy in the past, was reportedly discussing filing a likeness-rights suit against the makers of Grand Theft Auto 5, claiming that a character in the game is based on her. That was in December of last year and apparently over six months of her lawyers explaining to her what parody is hasn't taken, because reports are now coming out that she has indeed filed in a New York court.

Lindsay Lohan is suing the makers of the "Grand Theft Auto" video games. The actress says the latest installment used her image and created a character based on her without her permission. Lohan's lawsuit says a character named Lacey Jonas is an "unequivocal" reference to the "Mean Girls" and "Freaky Friday" star. The suit says Lohan's image, voice and styles from her clothing line are depicted. It says the game features West Hollywood's Chateau Marmont hotel, where Lohan once lived.

Once again, lawyers for GTA5 should be able to walk into the courtroom, softly say the word "parody", and then walk right the hell back out victorious. But, as I previously described, Lohan's allegations are way more fun than that. She claims that two separate characters are based off her in the same game, including a character that is described as a drunk driver and who enjoys fornicating in public places. One would think that a person would want to avoid claiming a likeness to such a thing, but that's apparently not the case with old LiLo. Worse yet, while there may be some obvious draws on Lohan's life story to create this parody, there are several aspects of both characters that clearly have nothing to do with her and are simply composites of celebrity culture in order to create a funny homage to the L.A. celebrity lifestyle.

As other commentators note, suing over this kind of thing has little chance of going anywhere.

As a general matter, you will not be held liable for using someone's name or likeness in a creative, entertaining, or artistic work that is transformative, meaning that you add some substantial creative element over and above the mere depiction of the person. In other words, the First Amendment ordinarily protects you if you use someone's name or likeness to create something new that is recognizably your own, rather than something that just evokes and exploits the person's identity.

As I mentioned in the last post, I've played this game, played this mission, and I didn't once even think about Lindsay Lohan. The character is just mocking celebrities that get themselves into trouble and generally behave like entitled miscreants. The only reason I now associate those kind of personality flaws with Lindsay Lohan is because she insisted on it through this lawsuit that will likely fail. So...well done all around, Lindsay!

Filed Under: grand theft auto 5, gta 5, likeness, lindsay lohan, privacy rights, publicity rights
Companies: rockstar games, take two interactive

Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'

from the ugh dept

A filmmaker is trying to make a film about basketball great Wilt Chamberlain's college years at Kansas. However, his estate appears to be threatening the filmmaker if he goes ahead, claiming such things as publicity rights over Chamberlain's image (thanks to Nancy for sending this over).

“Please be advised that on December 21, 2001, the court approved that the Chamberlain Family are entitled to ‘all of the rights, titles and interests into the intellectual property and rights of publicity associated with the international sports celebrity in the name and likeness of Wilton Norman Chamberlain.’

“Kevin, therefore, I request on behalf of my family, and as outlined in our above-mentioned letters, that you do not violate these rights by pursuing the name and likeness of Wilt since you do not have permission from our family.”

We've discussed many times just how frequently publicity rights are being abused to stop basic speech, and this appears like another such case. While publicity rights depend on the specifics of state laws, it is generally not considered a violation in any way to make a film about a public figure. That's why something like The Social Network was allowed, despite Mark Zuckerberg's obviously distaste for a movie highlighting the various legal claims against him and Facebook.

Publicity rights are supposed to be about preventing someone's image from being used to endorse a product -- such as putting their image on a cereal box. According to this document (pdf), Kansas doesn't have a publicity rights law (or didn't back in 2010). So, perhaps they're claiming that some other state's laws might apply. The family appears to live in Las Vegas, and Nevada does have a publicity rights law, which extends 50 years after death -- so perhaps that's what they're relying on. Many other states don't recognize such rights after death.

Either way, this seems silly and not at all a publicity rights issue. No one is going to assume that this movie is necessarily endorsed by Chamberlain or his family, just as they don't naturally assume any sort of biopic was obviously endorsed by those the film is about (or their families). Instead, this just seems like a clear case of someone trying to use the law to censor a filmmaker. Shameful.

Filed Under: films, kansas, likeness, publicity rights, wilt chamberlain

Columnist Accuses EA Of 'Identity Theft' For Using Player Likenesses

from the doesn't-pass-the-laugh-test dept

Reader LCD points us to a piece in the New York Daily News that is so utterly stupid I don't want to spend much time on it—but it deserves (nay, requires) a brief pause for ridicule. According to the column by Andrea Tantaros, who almost exclusively covers politics and should probably stick to that, EA's use of football players' likenesses in video games (a topic we've covered before) is akin to identity theft:

Identity theft is a huge problem that affects millions of Americans each year. If a crook stole your most personal information and used it to make a buck, you'd be furious.

And, of course, that's illegal. But if you are a corporation, you can steal all the identities you want for profit.

That's what video game company Electronic Arts is doing when it deliberately exploits the likeness of the players it uses in popular video games. And it doesn't pay them a cent.

Uh-huh. Identify theft is about serious criminal fraud, not the violation of publicity rights that may or may not actually exist. To accuse EA of identity theft is hyperbole in the extreme, and makes it hard to take the remainder of the column seriously.

As for that remainder, it makes a little bit of effort to address the real issue, but Tantaros simply takes it for granted that everyone has some sort of innate human right to control any and all usages of their likeness. That's not at all the case, and while there is room for some reasonable debate on the merits of publicity rights, it isn't going to stem from frivolous accusations of identity theft.

Filed Under: identity theft, likeness, video games
Companies: ea

Cypress Hill Backup Singer Sues Take Two For $250 Million; Says GTA Character Based On His Life

from the insane-in-the-brain dept

Apparently, a backup singer from the group Cypress Hill, Michael "Shagg" Washington, is suing Rockstar Games and Take Two Interactive, claiming that he was the model for the main character in Grand Theft Auto: San Andreas and that they now owe him a cool 25% of the total revenue from the game (which would be $250 million of the $1 billion it supposedly made). He apparently met with the game designers and answered a bunch of questions about his life and they said thank you and never spoke to him again. He claims they promised to notify him if he was to be used in the game. His name is apparently listed in the credits under "talent," but that hardly seems like it's worth $250 million. He's claiming "fraud, misappropriation of likeness and copyright infringement." I haven't seen the actual complaint, but all three seem like pretty weak cases from what's been said. Perhaps there's a misappropriation of likeness issue if the guy really looks the same, but even that might be a stretch. I can't see how there's any copyright issue at all. Is he claiming copyright on his life story?

Filed Under: copyright, cypress hill, fraud, grand theft auto, likeness
Companies: rockstar games, take two interactive

Jim Brown Appeals Case Over Whether Or Not EA Can Use His Likeness In A Video Game

from the first-amendment? dept

Back in September last year, we wrote about an important district court ruling that said video game maker EA was within its rights to use a likeness of football player Jim Brown in its video games. In the past few decades, there has been a dangerous expansion in so-called "publicity rights," like this that effectively put serious limits on what others can do. This expansion needs to be challenged, even if it seems like something so simple as a video game. Not surprisingly, however, Brown is now appealing the district court's decision to dismiss the case, saying that he wasn't able to present all the facts. We noted last year that this case would certainly be appealed, so this doesn't come as a huge surprise. Still, it should be a case worth watching if you are concerned about the expansion of concepts like publicity rights (and, on the flip side, about free expression rights).

Filed Under: jim brown, likeness, publicity rights, video games
Companies: ea

Judge Says Video Games Can Use Sports Stars Likenesses

from the protected-by-the-first-amendment dept

Earlier court rulings have found that sports leagues cannot stop videos games from using player stats, since that's factual information. But, what about player likenesses? Many had assumed that was still forbidden without a license, but a new court ruling has found otherwise. Former football player Jim Brown had sued EA, claiming the use of his likeness violated his rights, but a district court judge has dismissed the case, saying that video games are "expressive works, akin to an expressive painting that depicts celebrity athletes of past and present in a realistic sporting environment," and thus are protected by the First Amendment. The case will almost certainly be appealed, but for now, it's a big win for video game makers and their ability to use player likenesses in their games without licensing them first.

Filed Under: copyright, first amendment, likeness, publicity rights, sports stars, video games
Companies: ea