Well now, according to this (http://www.ncsl.org/programs/lis/privacy/publicity04.htm) only 11 states have common-law only rules about the right of publicity. The statutes seem to vary substantially on survival of the right after death.
Sorry to dredge up this thread, but after reading a bunch of the references, I wanted to ask the lawyers in the thread if I interpreted things correctly.
I’m working on a video game set in the 1940’s, and I wanted to use a few historical figures like Einstein as characters to make it feel more authentic. I’ll have to run it through our legal department, and they’ll probably say no. No is their default position on everything because we can’t get sued for something we didn’t do. Understandable, but sometimes frustrating. I was hoping to find something to bolster my argument, but after reading a number of these articles and reviews, it seems like they will have to say no. My interpretation is as follows:
Most of the laws make exceptions for things they consider art: novels, movies, TV shows, music, etc. Video games aren’t mentioned, either because they aren’t considered art or simply because it’s a new form of media and there isn’t established case law to go by. Video games could reasonably be considered to be in the same category as movies and television, but because they aren’t explicitly mentioned, there’s room for lawsuits. Even if we got sued and won, our legal department isn’t interested in winning cases. Their job is to avoid them, so there’s no point in taking the risk.
Only three states extend rights to deceased people longer than 50 years (Einstein has been dead 51). The fact that our game will be released in those states means we’d be open to litigation in those states, so, again, we can’t take the risk. This seems to mean that any product released nationally has to adhere to the most conservative aspects of the laws of any individual state.
Obviously I’m not a lawyer. I just want to put Einstein in a video game. But it looks like the legal department has to tell me I can’t, and I don’t have a good reason to disagree with them.
The parental penguins in Happy Feet speak and sing like and have names that strongly hint of Marilyn Monroe and Elvis Presley. (Papa sounds like Elvis and sings an Elvis song, and Mama is named Norma Jean and has a breathy, girly voice.) At the very end of the end credits, there is mention that the name Norma Jean and the voice and mannerism imitations of both stars are used with permission of Elvis Presley Inc. LLC etc and Marilyn Monroe Inc. LLC etc.
Yes. This is the crux of the problem right here. You don’t know where you will be sued, if you get sued. Not only that, but you face several more layers of uncertainty, including:
What choice of law rule will the court apply?
Many choice of law rules are, er, flexible. What law will the court decide the choice of law rule requires it to apply?
If the court decides to apply another state’s law, how close will it come to applying that law correctly?
And you are right. The easy and safe answer for in-house counsel is usually, “Nope. Can’t.” Like Mr. Miyagi says: “best block, no be there.”
But what is the alternative? You really can’t control who sues you, or where. You might be able to pay a bunch of money to hire a lawyer to get the case dismissed quickly, and if the stars are in alignment, you might even get the court to order the plaintiff to pay at least some of your attorneys’ fees. And maybe, just maybe, the plaintiff will have some assets to cover the fee award. Of course, the odds of all of these things happening in the same case are tiny.
As I’ve mentioned before, SF writer James Hogan actually got permission from the historical folks (at least the ones still alive) who are depicted in his time travel novel The Proteus Project, the only time I know this has been done.
On the other hand, I don’t think W.P. Kinsella got permission to use J.D. Salinger as a character in his novel Shoeless Joe (although this page claims they’re friends: Field of Dreams (1989) - Trivia - IMDb ) When they made the movie Field of Dreams that character became “Terence Mann” (played by Jamers Earl Jones) (Salinger had written a story with a character named Ray Kinsella once)
This has always been in my mind considering the Alternate History boom of recent times. While not all of them do it the fact that one of the biggest (possibly THE biggest) writer of Alt-History, Harry Turtledove, has long made a habit of using historical figures in his novels. Always seemed dodgy to me a bit.
Obviously, he does this less the more recent the setting is given that some of the people he’s depicted are still alive.
Also, Max Brooks ‘World War Z’ features many characters clearly meant to be now famous politicians and such but are never named.