Tuesday, September 26, 2006
Game Maker May Use Celebrity’s Likeness if ‘New Expression’ Added—C.A.
By a MetNews Staff Writer
The First Amendment provides a complete defense to a celebrity’s claim that a game maker misappropriated her likeness where the game maker added “new expression,” this district’s Court of Appeal ruled yesterday.
In an unpublished opinion, Div. Eight upheld Los Angeles Superior Court Judge James C. Chalfant’s order granting summary judgment to Sega of America, Inc. in a suit brought against it by singer-dancer Kierin Kirby.
Kirby, who goes by the names “Lady Miss Kier,” “Miss Kier” or “Lady Kier,” was the lead singer of the 1990’s retro-funk-dance musical group Deee-Lite. The group made five albums, but was best known for its hit song “Groove is in the Heart,” and the song’s psychedelic music video featuring Kirby singing and dancing. The group disbanded in the mid-1990s.
Sega distributes a video game called “Space Channel 5,” which includes a character called Ulala. In the game, Ulala is dispatched to investigate an invasion of Earth by dance-loving aliens who shoot earthlings with ray guns, causing them to dance uncontrollably. The player attempts to have Ulala match the dance moves of the other characters. One character at the game’s final level is known as “Space Michael.” It was created to resemble singer Michael Jackson, who performed the character’s voice and receives credit in the game.
Kirby filed suit alleging that Sega wrongfully used her name, likeness and identity in developing and marketing the game and, specifically, its Ulala character. Sega moved for summary judgment arguing that its right of free expression under the First Amendment provides a complete defense to Kirby’s claims. After Chalfant granted the motion, Kirby appealed.
Justice Paul Boland, writing for the Court of Appeal, noted that the character Ulala has many features similar to Kirby’s. Both are thin with similarly shaped eyes and faces, red lips and red or pink hair. Both wear brightly-colored, form-fitting clothing, including short skirts and platform shoes in a 1960’s retro style. Ulala’s name is a phonetic variant of “ooh la la,” a phrase often used by and associated with Kirby. Both used the phrases “groove,” “meow,” “dee-lish,” and “I won’t give up.”
But Boland said there were significant differences. Ulala is seen most often with her hair in short, high pigtails, wearing an orange cropped-top bearing the numeral “5” and orange miniskirt, orange gloves and boots with stiletto heels, a blue ray-gun holster strapped to her thigh, and a blue headset and jetpack. Kirby usually wears form-fitting body suits, with her hair shaped into a page-boy flip, held back with a head band. When Kirby wears her hair in pigtails, the pigtails not only are longer than Ulala’s, but Kirby has tendrils of hair draping over her forehead which she holds back with clips, unlike Ulala.
Kirby conceded she has no singular identity, her appearance and visual style are “continually moving,” and she “is not the type of artist that wants to do the same thing every time.”
Boland also noted that the game is set in outer space several centuries in the future, while Kirby has a retro 1960’s style, and neither her videos nor photographs relate to outer space.
Despite these differences, Boland concluded:
“Ulala’s facial features, her clothing, hair color and style, and use of certain catch phrases are sufficiently reminiscent enough of Kirby’s features and personal style to suggest imitation.”
In addition, Boland noted that Kirby was specifically asked by a Sega affiliate in 2003 to endorse SC5. Boland said the solicitation suggests Sega knew of Kirby and believed her association would benefit release of the game in Europe.
But Boland agreed with Chalfant that the First Amendment provides a complete defense to Kirby’s claims because Sega did more than just make a “literal depiction” of Kirby, it “added expression.”
Kirby argued that Sega was not entitled to First Amendment protection because the character fails to “say [anything] – whether factual or critical or comedic – about a public figure.”
Boland disagreed, saying:
“All that is necessary is that [Sega’s] work add ‘something new, with a further purpose or different character, altering the first with new expression, meaning, or message.’ . . . A work is transformative if it adds ‘new expression.’ That expression alone is sufficient it need not convey any ‘meaning or message’ The Ulala character satisfies this test.”
Justices Candace Cooper and Madeleine I. Flier concurred in the opinion.
Maxwell M. Blecher and Courtney A. Palko of the Los Angeles firm Blecher & Collins represented Kirby.
Tod L. Gamlen, Keith L. Wurster and Christopher J. Keller of the Palo Alto office of Baker & McKenzie represented Sega.
The case is Kirby v. Sega of America, Inc., B183820.
Copyright 2006, Metropolitan News Company