Using celebrity names in a fictional work

February 23, 2005 4:40 PM

Can I legally print a list of celebrity names within a fictional work?

Imagine a game where the participants each act out the role of a famous, living celebrity attending a party with other celebrities (the other players). I play Sean Connery, you play Arnold Schwarzennegger, etc. as we schmooze over hors d'oeuvres and cocktails.

Suppose that this game printed a list of the names of, say, 500 celebrities you could choose from. No description, no defining characteristics, just names, the idea being that these people are well known enough that people could imitate them with no further prompting.

Based on case law, precedent, etc., would any of the people so named have any legal reason to sue, merely for using their name in a list within a game?

posted by dotComrade to law & government (9 comments total)

IANAL but I don't see why. If such lists were prohibited how could games like Trivial Pursuit avoid lawsuits? Even if you included some "defining characteristics" I don't see a problem as long as you meet established legal tests for slander and libel; the problem would come in if you used their likenesses for commercial purpose without paying a fee. To remove your game even one step further back, you could include the list simply as suggestions of names to use rather than names players must use.
posted by billsaysthis at 5:14 PM on February 23, 2005

Short answer: You cannot be sued. Names are in the public domain, and you are therefore free to use them.

Long answer: You cannot be sued. Names are in the public domain. What you are worried about is a celebrity suing to enforce his/her rights of publicity (which is a right only recognized in some, not all states). Rights of publicity are somewhat analogous to trademark protection. The law allows famous people to protect their "brand" from exploitation by third parties. Really, its an anti-appropriation law - the idea is that celebrities have worked hard to create an image that is commercially valuable, so others cannot use that image for their own gain for free. Specifically, it keeps unscrupulous people from using the names, faces or "likenesses" to sell something.

However, the situation you describe is not one of commercial exploitation, and therefore, I don't think you have anything to worry about. Even if someone threatened legal action, the game you describe would seem to fit squarely within the parody exception to copyright law (copyright being the federal law most similar to state right of publicity laws)
posted by thewittyname at 6:09 PM on February 23, 2005

You cannot be sued

I think you mean, "You cannot be successfully sued" (with "successfully" meaning the plaintiff winning in court). Doesn't mean someone can't file a law suit. And even if it is certain that you will win in court, you could very well be better off caving in than going through all the time and expense to fight it.
posted by winston at 6:34 PM on February 23, 2005

I wouldn't go so far as to say "you cannot be successfully sued." I'd say you shouldn't be able to be successfully sued, but that it's not open-and-shut.

Thewittyname is right when it comes to copyright, but I fear that the trademark and misappropriation law threads to right of publicity are less friendly to your game. There have been some real stunners of right-of-publicity cases.

It's not a lock that the situation isn't commercial exploitation, at least if this game were offered for sale. You'd think that your game, like a trivia game, is on safe territory for using the name descriptively, but Kareem Abdul-Jabbar managed to sue GM successfully for using his (former) name in a trivia question that aired as part of an Oldsmobile ad during an NCAA tournament. That's probably the extreme high-water mark, but it's pretty scary nonetheless.

I'd note also that Marvel is pushing a similar legal theory in its suit against City of Heroes. A big part of the claim there is that CoH lets/encourages players to make characters that resemble trademarked comic book heroes.
posted by grimmelm at 7:03 PM on February 23, 2005

If ou plan to implement such a scheme, you really should consult a lawyer with some experience in IP and publicity rights, not AskMe; you will have too much riding on the answer to not get a professional opinion.
posted by caddis at 7:32 PM on February 23, 2005

make that "you"
posted by caddis at 7:39 PM on February 23, 2005

Just read Bret Easton Ellis' "Glamorama" and note that he hasn't been sued, AFAIK. I think he name-drops over 100 celebrities in that. Maybe over 200.
posted by zardoz at 7:42 PM on February 23, 2005

I apologize for using the sloppy terminology "you cannot be sued." Anyone can be sued, but not anyone can win. What I should have said is: a) you are not likely to be sued and b) even if you are sued, it is even less likely that you would lose.

As for the specific trademark issue, if the celebrity has not claimed or registered his or her name as a trademark, there is no problem. However, even if they have, I'm not sure that the result is any different. In order for a trademark infringement case to go forward, the infringing use has to be similar to the use in which the trademark is normally used. In your game, you're going to have people acting as actors using their names, so it might seem infringing. However, that is in the context of a game, not real life. If someone held themselves out as Sean Connery to land a role in an actual movie, that's and infringing use.

And as for the rights of publicity, grimmelm is right about how scary the law has been extended. However, I still think there is a clear difference between using a name in a nationally televised car ad and using the name as a basis for a game of charades. I think an important distinction here might be between selling a game in which celebrity's names are listed, and using celebrity's names to sell a game. It's tricky if your entire game is just as described - a type of charades where everyone is acting out a character. In that case, your game and the celebrities are one and the same. If you used a specific celebrity or group of celebrities to promote your game, you might be in big trouble. But if its marketed as something more indistinct like "Hollywood Party", then I fail to see how you have any problem.

*However, you may want to take grimmelm's advice on this one, as I know for a fact he has more experience in IP law than I do.
posted by thewittyname at 8:03 PM on February 23, 2005

Depending on your jurisdiction -- and hey, we're on the interweb, so there are an assload of jurisdictions to be sued in -- you have to watch out for the common law right of privacy. For example: One who appropriates the commercial value of a person's identity by using without consent the person's name, likeness, or other indicia of identity for purposes of trade is subject to liability for the relief appropriate. So having users play a character named Sean Connery may be more risky than having them play a character named Joe Blow who is going to a party where Sean Connery may arrive, but will not participate in the game. You may be able to EULA your way around that, but you're out of my experience at that point.*

* Insert obvious CYA disclaimers here.
posted by subgenius at 9:41 PM on February 23, 2005