In principle, the image rights of historical and fictitious characters are subject to legal protections, as such commercial use by authors of games will require consent. However, there are exceptions.
Young people increasingly enjoy spending their time in the virtual world. Each year new ideas and concepts appear on the games market. A recent trend is to create a fictitious character which corresponds to a well known person from the real world. New technologies enable these virtual characters to be designed as practically identical. There have even been situations where a famous person files for litigation because their „virtual image” possesses features which in their opinion are not reflected in reality. An example is the lawsuit brought by the former dictator of Panama, Manuel Noriega, who sued the Activision company for illegal use of his image in the game Call of Duty: Black Ops II issued in 2012, accusing it of presenting him as a „kidnaper, murderer and public enemy” in order in increase the popularity of the title. He demanded not only aggravated damages but also substantial financial compensation.
How is the issue of legal and copyright protection of the image rights of celebrities regulated in relation to games?
FIFA, PES, NBA, NHL, Call of Duty, Assassins Creed are only examples of games where we meet our favorite sportsmen, actors or other celebrities. On the grounds of applicable provisions of law distribution of a person’s image requires the consent of the represented person. Polish law provides certain exceptions to this general rule. Pursuant to Art. 81 of the Act of 4 February 1994 on copyright and related rights such consent is not required if the represented person obtained agreed remuneration for posing. In addition, distribution of the image of a widely known person is permitted if such image was recorded in relation to that person’s public function, specifically their political, social or professional role, as well as in cases where the image of a given person is only a detail in a larger congregation, landscape or public event. The regulation emphasizes there must be actual correspondence between use of the image and permitted exceptions.
With regard to computer games and use by their authors of the images of real life characters it is to be clearly demonstrated that such use serves a commercial purpose, so the exceptions from the general requirement of obtaining consent as indicated above would not normally apply.
The law does not expressly indicate the form of such consent, but the general practice is to enter into written agreements authorizing authors of games to use a person’s image. The important point is the producer of the game will bear the burden of proving he or she holds the relevant rights. In 2017 the authors of the game League of Legends discovered how expensive the use of the image of a famous person may be when they were sued by a former player of the Juventus football club and member of the Dutch national team, Edgar Davis. The case referred to one of the skins in the game released in 2014 in relation to the World Football Championship in Brazil. It provided the ability to change one of the characters in the game into a footballer. Unfortunately the skin was very similar indeed to Edgar Davis, particularly with regard to features such as skin color, hair style, and most of all the characteristic glasses in which Edgar Davis played.
Use of representations of fictitious characters
Use of fictitious characters in video games seems to be one of the most complex legal issues. The definition of a „fictitious character” in itself constitutes a large catalog. It includes literary and artistic characters as well as those which appear in audio-visual works. Literature on the subject points to the inseparable bond between the fictitious character and the work in which it appears. As such it is frequently not protected as a separate item, irrespective of the work within which it was created. However, a character „extracted” from the environment in which it was brought into being may also be the object of independent copyright protection. Provided of course that the characteristic features or representation of the person fulfill the requirements of a work, being sufficiently creative and ingenious.
In Toho Co., Ltd. v. Wiliam Morrow Co. the claimant, a film producer, requested copyright protection for the famous Godzilla character. In its reasoning it invoked a judgment passed in the case brought by Metro-Goldwyn-Mayer against American Honda Motor concerning protection of the James Bond character. The court found that the fictitious character may be considered the subject of copyright protection due to the individualized set of features developed in the 16 successive films of the series, despite the fact that Bond himself had changed somewhat. The producer emphasized that Godzilla (just like James Bond) possesses features which developed in the course of successive episodes of the film as well as those which remained unchanged throughout the series (gigantic dinosaur, prehistoric fire spitting monster). Ultimately the court found that Godzilla is subject to copyright protection.
Use in a computer game of a representation of our favorite hero is covered by copyright protection and will give rise to legal consequences if the consent of the rights holder is not previously obtained. However, if we only use the concept, or an archetype of a fictitious character, the situation will be quite different. Copyright protection covers only the manner of representation, which does not apply to discoveries, ideas, procedure, methods or mode of action.
The image of deceased historical persons
The right to protect one’s image, being a personal right, is strictly connected with a specific person. This principle indicates that such right expires upon the person’s death (claims for breach of image rights cannot be legally pursued after more than 20 years from death). However, this does not mean we are free to use the image of deceased persons. The rights of such persons are replaced by the rights of their relatives who are entitled to protection of their bond with the deceased, the right of cult of the deceased and the right to venerate their memory.
In 2014 a notorious court case took place in Poland concerning use of the image of the former leader of the rock group Republika, Grzegorz Ciechowski, in a men’s suits commercial. Although the wife of the deceased singer agreed to the commercial use of her late husband’s image, Mr Ciechowski’s daughter as well as other members of the rock group raised their objections to the idea. In an official letter to the brand Ms Weronika Ciechowska-Weiss emphasized that „the impression is that his memory is being desecrated, his image is up for sale (…) Use of his image, name and renown in a commercial offends my right to venerate his memory as an artist, not a celebrity he never wanted to be”.
Although the consent (of a living person or a close relative of the deceased) will usually provide sufficient ground for use of the image, it is not a rule without exceptions. The above mentioned Manuel Noriega discovered this when the court found that the use of his image was legitimate. The same will apply to other historical characters with an „established” historical reputation. The heirs of Hitler, Stalin or Pol Pot will not be in a position to block games in which these „heroes” appear in unappealing situations. This is also true in the case of historical persons from previous epochs. Napoleon, Julius Caesar or Alexander the Great can appear in game scripts without fear of any claims.
On the grounds of Polish law the image of Fryderyk Chopin is subject to special protection, regulated by a separate Act of 3 February 2001 on the protection of Fryderyk Chopin’s legacy. The Act stipulates the works of Chopin and the objects associated with him are national property subject to special protection. The name Fryderyk Chopin and his representation are protected, the principles pertaining to the protection of personal rights apply accordingly.
Essentially the images of real persons, fictitious characters, as well as deceased or historical persons are protected by law, and authors of computer games will be required to obtain the relevant consent for their commercial use. Obviously each case is to be considered on individual basis and general provisions of copyright law as well as civil law related to protection of personal rights must be applied.