Can I legally use celebrity's names in a browser-based game?

June 25, 2007 12:54 AM

In a browser-based game, am I allowed to use the real names of actors and actresses, or do I need to use similar sounding names so as not to get into legal trouble?

The game would be a kind of "hollywood simulator", you start with a coupla million in play money and make movies. You select the actors/actresses from a list of names, then select the director, and so forth

Server location would be @ dreamhost (I believe they're in LA? Or San Francisco. Either way, in the US), but could be moved to Switzerland if necessary.

posted by slater to law & government (23 answers total)

In short, don't do it. Celebrities have the right to control their likenesses and such things as their name. This is as true in Switzerland as the USA. Since it's not parody, even identifiably similar names could land you in trouble, at least in theory. It's possible no one would care, but I'd hate to make a couple of million off the game and lose it all because my imagination was too limited to come up with my "own" characters!
posted by Dee Xtrovert at 1:13 AM on June 25, 2007

This isn't a matter of right and wrong.

You're talking about lawyers. And lawyers=money. All the celeb has to do is set a team of lawyers on you and you're already spending money to defend yourself, even if you have a cast-iron legal right to use their details.
posted by humblepigeon at 1:54 AM on June 25, 2007

IAAL. This is a bad idea, most especially if you're planning on making money with this game. I'm not even sure about it if you change the names, if they're still identifiable (but I'm not an expert in this field).

Unless you're willing to have actors with completely made up names, you should talk to a lawyer who specializes in intellectual property/entertainment law before proceeding.
posted by kingjoeshmoe at 2:36 AM on June 25, 2007

Hmm.. damn.

OK, thanks for the help :)
posted by slater at 2:53 AM on June 25, 2007

I played a game like that in the 80s. It was called Movie Mogul, and came on Big Blue Disk. I can't find a reference to this specific game anywhere on Google, but I know it existed.
Entirely text-based, naturally,but you did choose actors by their real names...
posted by jozxyqk at 3:12 AM on June 25, 2007

Imagine you have a character called Cameron Diaz.

Your game mechanics has her taking a fee of, say, $1,000,000 for a movie.

She could then sue you for libel for suggesting that she takes such a small fee for a movie.

She could sue you in any country in which the game is sold and/or used, including the UK, which has libel laws so drastic that people actually prefer to use the British courts to pursue actions, even if the source material was primarily intended for a US audience.

Swim with sharks and you'll going to get eaten.
posted by humblepigeon at 3:17 AM on June 25, 2007

joz: Haha, same here, and it's one of my motivations of making this game. I had a game called "Hollywood Manager", on i guess the german equivalent of Big Blue Disk called "Magic Disk".. ah, good times.

fake edit: In searching for your Hollywood Mogul game, I came across this:
https://secure.netsolhost.com/hollywood-mogul.com/vbull/forums/showthread.php?t=555
Basically, there IS already a proper, non-browser-based game like this, but it seems they use fake names, but allow those names to be updated by the user.

So the real question is: If I start off with fake names, but make it possible for the users to edit their names (for example, from "Tom Shmooz" to "Tom Cruise"), would that be legal?
posted by slater at 3:24 AM on June 25, 2007

If I start off with fake names, but make it possible for the users to edit their names (for example, from "Tom Shmooz" to "Tom Cruise"), would that be legal?

Well. Prompting users to use real names by suggesting names that rhyme with them doesn't get you off any hooks.

On the other hand, on the matter of libel specifically, if the real name were seen only by the individual user, libel would be impossible, since it requires a third party (in whose eyes the celebrity's reputation is putatively sullied).

Whether or not website operators are legally liable for the contributions of users (to discussion forums, etc) is still unsettled in the courts, definitely in the UK, and I believe in the US. I wouldn't want to be the guinea-pig for this with Hollywood as my opponent.
posted by game warden to the events rhino at 3:39 AM on June 25, 2007

The libel argument may be plausible, but it's certainly not the first reason you'd get sued - simply misappropriating someone's name, image, etc would do it - and it would do it without subjecting the celebrity to embarrassing jokes of snobbery, as the Cameron Diaz example probably would.

Likewise, the "Tom Shmooz" argument would have to be that this game is a *primarily* parody. The primary objects of any parody being (I suppose) either to simply make fun of something (like that guy Weird Al who makes fun of the songs) or to issue forth some sort of social statment (like the television show "L'il Bush"), parody and humor would have to be the focus of your game for the argument to work - but in reality, your game is entertainment, not humor or social commentary. Even so, people have still been successfully sued for parody that really is parody. Since it's logical that the name for a video game movie star like "Tom Shmooz" is obviously based on Tom Cruise, it's not much different than using his real name - probably worse, because there could be some issues of defamation or something in that as well.

The obvious thing to do would be to create entirely fictional names with no basis in any real celebs' names. But allow people to type in whatever name they like.
posted by Dee Xtrovert at 3:41 AM on June 25, 2007

The legal term your lawyer will bring up if you ask him is "right(s) of publicity". Essentially, by using their names, you are implying endorsement, for which they should rightfully be paid. And if you do ... they will.
posted by dhartung at 5:12 AM on June 25, 2007

OK. Guess it's fake, non-similar names... thanks everyone :)
posted by slater at 5:24 AM on June 25, 2007

This area is actually being litigated right now - the NFL Player's Association is suing various fantasy football leagues, claiming that the NFLPA has a right to control the use of players' names, and Major League Baseball is doing the same thing with baseball fantasy leagues.

In the original case, Major League Baseball lost: "On Aug. 8, 2006, U.S. Magistrate Judge Mary Ann L. Medler strongly sided with CDM Fantasy Sports, stating that "players do not have a right of publicity in their names and playing records as used in [CDM's] fantasy games."" Major League Baseball is appealing.

So. It's not as clear-cut as many of the answers above would seem to suggest. You should watch those lawsuits, and decide on your behavior depending on whether the fantasy leagues win or lose.
posted by jellicle at 6:09 AM on June 25, 2007

Jellicle, MLB just lost another appeal on it as well, though it's not just the player's names, it's the stats the leagues use.
posted by drezdn at 6:16 AM on June 25, 2007

So. It's not as clear-cut as many of the answers above would seem to suggest. You should watch those lawsuits, and decide on your behavior depending on whether the fantasy leagues win or lose.

And whether or not your budget can afford the lawyers necessary to get the same result!
posted by mendel at 6:36 AM on June 25, 2007

Bear in mind that mixing and matching characteristics of stars, to avoid specific identification, can still open you up to libel.

Say you had a game character who's a prominent female Scientologist.

You could be opening yourself up to libel litigation from any prominent female Scientologist actress. The key thing to understand is that it's not who you intend the representation to be. It's who the judge and/or jury interpret the representation to be. Your intention has no bearing on it.

This is one of the many things that journalists have to be careful about. Not providing specific details in gossip journalism, in an attempt to avoid libel/slander, can be as bad as being specific.
posted by humblepigeon at 6:45 AM on June 25, 2007

I'm going to kibbitz here. Why not have a name change option? You can start off with Eulalee Schmeld and have the person change the name to something more Hollywood-y. That way the player can choose Angelina Jolie.

Another thing is to have the player choose from a list of classic "movie-star sounding" first names and last names.

Troy, Dirk, Charlton, Lee, Brad, LaToya, Cyd, Audrey

and "movie-star sounding" last names.

Hepburn, Barrymore, Pitt, McClure, Ford, DeNiro

or randomly generate one according to theme: (action hero, porn star).
posted by dances_with_sneetches at 6:45 AM on June 25, 2007

Well, you could make a format for 'customization packs' or something like that, and make it a convenient but non- obvious task to add in real people...
posted by tmcw at 6:47 AM on June 25, 2007

You could look up name generators and create names based on the players' data (the Pet's Name + City Of Birth type things).
posted by divabat at 7:01 AM on June 25, 2007

It isn't the name, it is your intention to use the likeness. Go ahead and use the name Tom Cruise, just make sure the character looks more like Forrest Whitaker (not too much like Forrest Whitaker though, because it is his likeness that is protected). On top of that, you are protected if it can be considered parody. Consider the Micheal Jackson episode of The Simpsons, or any episode of South Park.

At various times in the past, I'm sure I've seen games that were not parody which skirted likeness restrictions. However, people are very litigious about this stuff nowadays, so you will probably get cease and desists even if you have a solid legal defense. Since going to court is often about who has the fatter wallet, no matter how 'correct' your defense, you'll end up a loser.

But, if you try, you might succeed, if you don't try you will fail.
posted by Chuckles at 9:17 AM on June 25, 2007

Sadly, it's even a little bit dangerous to let players customize the game.

Take for example Marvel's lawsuit against City of Heroes because their character customization let players look like Captain America.

Legally I don't think they have much to stand on, but City of Heroes developers still have a lawsuit to defend against.
posted by Ookseer at 10:35 AM on June 25, 2007

How does the Hollywood Stock Exchange not fall prey to these lawsuits when they're clearly using celebrities in a fantasy, game-like environment?

They've been at this for a long time (since at least '97).
posted by stovenator at 12:59 PM on June 25, 2007

Chuckles' advice is a little off. First of all, the name is a factor as well as the likeness. Trying calling a shampoo "Elvis Presley Shampoo" and see how quickly you get (successfully) sued, regardless of whether you use his likeness as well. Second, as I pointed out above, the purpose of your game (from what you've mentioned) doesn't clearly meet the definition of parody, while the Simpsons and South Park obviously due. But most important, you can't afford to fight these battles, even if you were to win (which is unlikely.) And Michael Jackson would hardly sue the Simpsons for appropriating his image and a fair approximation of his voice, when he was the one who voiced the character!
posted by Dee Xtrovert at 2:56 PM on June 25, 2007

Sorry for the derail, but...Wasn't the Michael Jackson episode of the Simpsons actually voiced by Michael Jackson?
posted by Nodecam at 11:02 AM on June 26, 2007