Kirby v. Sega of America, Inc.
35 Media L. Rep. (BNA) 1075, 144 Cal. App. 4th 47, 50 Cal. Rptr. 3d 607 (2006)
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Rule of Law:
An expressive work, such as a video game, that uses a celebrity's likeness is protected by the First Amendment as a 'transformative work' if it adds significant creative elements, making it the defendant's own expression rather than a mere imitation of the celebrity.
Facts:
- From 1986 to 1995, Kierin Kirby, known professionally as 'Lady Miss Kier,' was the lead singer of the musical group Deee-Lite.
- Kirby cultivated a distinct public persona and a 'specific, distinctive... look,' which included retro and futuristic styles, platform shoes, brightly colored formfitting clothes, specific hairstyles, and signature phrases like 'ooh la la.'
- Respondents, including Sega of America, Inc., distributed a video game called 'Space Channel 5,' created between 1997 and 1999.
- The game's main character, 'Ulala,' is a thin, computer-generated female reporter in the 25th century with hot pink hair in pigtails, who wears a distinct orange outfit with platform boots.
- There are similarities between Kirby's persona and Ulala in terms of their 1960s retro style, facial features, and use of certain phrases.
- There are also significant differences: Ulala is an 'anime' style character, the game is set in outer space, her primary costume is distinct from Kirby's typical attire, and her dance moves were created independently by a choreographer who did not know Kirby.
- In July 2000, a firm retained by a Sega subsidiary contacted Kirby to gauge her interest in promoting the game in England, which Kirby declined.
Procedural Posture:
- Kierin Kirby filed a lawsuit against Sega of America, Inc., THQ, Inc., and Agetec, Inc. in a California trial court.
- Kirby's complaint included causes of action for common law right of publicity, statutory misappropriation of likeness, violation of the Lanham Act, and unfair competition.
- The defendants moved for summary judgment, arguing that the First Amendment provided a complete defense to all claims.
- The trial court granted the defendants' motions for summary judgment, finding that all of Kirby's claims were constitutionally barred.
- Subsequently, the trial court awarded the defendants, as the prevailing parties, approximately $608,000 in mandatory attorney's fees under Civil Code § 3344.
- Kirby, as the appellant, appealed the judgment and the fee award to the California Court of Appeal.
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Issue:
Does the First Amendment's protection of expressive works bar a celebrity's right of publicity and related claims against video game distributors when the game features a character that is allegedly based on the celebrity but contains significant transformative, creative elements?
Opinions:
Majority - Boland, J.
Yes. The First Amendment provides a complete defense to the right of publicity claims because the video game character is a transformative work. Applying the 'transformative use' test from Comedy III Productions, Inc. v. Gary Saderup, Inc. and Winter v. DC Comics, the court found that although the Ulala character bears some resemblance to Kirby, the character is not a mere likeness or literal depiction. The court reasoned that the defendants added significant creative elements, making Ulala a 'fanciful, creative character' rather than a simple imitation. These transformative elements include Ulala's computer-generated, 'anime'-style physique, her distinct primary costume, the futuristic outer-space setting of the game, and her unique dance movements. The court rejected Kirby's argument that a work must contain parody or commentary to be transformative, clarifying that the addition of 'new expression' is sufficient. Because Ulala is a transformative work and not a literal depiction, the public interest in free artistic expression outweighs Kirby's publicity rights, barring her claims under both state law and the Lanham Act.
Analysis:
This case is significant for extending the First Amendment 'transformative use' defense to the medium of video games, affirming their status as expressive works deserving of full constitutional protection. The decision clarifies that a work using a celebrity's likeness does not need to be a parody or social commentary to be considered transformative; the addition of significant creative and expressive elements is sufficient. This ruling provides greater protection for creators of fictional characters who may draw inspiration from real-life figures, making it more difficult for celebrities to succeed on right of publicity claims unless the depiction is a literal imitation rather than a creatively altered character. It thereby strengthens the position of artists and game developers against such claims, promoting creative freedom in interactive media.
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