As comedian Myq Kaplan says, “There’s a spectrum of dorkery from people who use words like dorkery and those who do not.” When Starcraft II was released on July 23, I was one of the millions of uberdorks around the world whose preorder instantly made it the fastest and best-selling computer game of 2010. As an additional testament to my dorkery, I soon thereafter identified a myriad of legal issues with the game.
Number one, the game destroys graphics cards (especially in laptops) because Activision-Blizzard forgot to include a framerate cap. This small oversight caused thousands of graphics cards like mine to overheat and die during game play. Huge potential for a class-action lawsuit? Possibly, but not very interesting, academically.
Number two, the game has a gigantic, mechanized soldier unit based on Arnold Schwarzenegger called the “Thor” (yielding the optimal blend of dorkery and machismo). But alas, as any Arnold aficionado can immediately tell, the Thor is voiced by a sound-alike and not the actual Governator. This made me wonder: did Arnold license his right of publicity for Starcraft II, or does the First Amendment give Activision-Blizzard the right to use Arnold’s likeness without his permission?
The Auhnuld Yoonit
This is the Arnold unit in Starcraft II:
For those who are unlearned in Schwarzenegger film studies (a course that will become mandatory at any educational institution ever foolish enough to hire me), the delightful dialogue from Starcraft II’s Thor unit derives from several classic Arnold films, including Predator (1987), True Lies (1994), and Conan the Barbarian (1982). Here’s a brief sampling:
Starcraft II line: “What happened to you, commander? They got you pushing too many pencils?”
Inspiration: Predator (1987)
Dutch: Dillon! You son of a bitch!
[They arm wrestle in mid-air during a handshake, Dillon is apparently losing the contest]
Dutch: What’s the matter? The CIA got you pushing too many pencils? Huh? Had enough?
Dillon: Make it easy on yourself, Dutch.
[Dillon begins to lose further]
Dillon: OK, OK, OK!
Inspiration: Predator (1987)
Dutch (to the predator): Come on…come on! Do it! Do it! Come on. Come on! Kill me! I’m here! Kill me! I’m here! Kill me! Come on! Kill me! I’m here! Come on! Do it now! Kill me!
Inspiration: True Lies (1994)
Helen Tasker: Have you ever killed anyone?
Harry: Yeah, but they were all bad.
Inspiration: Conan the Barbarian (1982)
Mongol General: Hao! Dai ye! We won again! This is good, but what is best in life?
Mongol: The open steppe, fleet horse, falcons at your wrist, and the wind in your hair.
Mongol General: Wrong! Conan! What is best in life?
Conan: To crush your enemies, see them driven before you, and to hear the lamentation of their women.
Mongol General: That is good! That is good.
This is not to say that all of the Thor’s lines are “inspired” by the Arnold film library. Some lines come from other classic 1980s films like Ghostbusters while others are entirely original. (Analyzing the copyright implications of all this is a subject for another post.) Then again, all of the lines are spoken in a faux Austrian accent that distinctly conjures the likeness of everyone’s favorite (former) Mr. Universe.
Schwarzenegger’s Right of Publicity
The basic idea of the right of publicity is that a person has the right to control the commercial use of his or her identity or “likeness.” This right includes protection against unauthorized commercial exploitation of a person’s distinct voice. Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988). As I explained in my first “Leggo My Likeness” post, the right of publicity becomes mired in complexity in the context of video games because of the First Amendment. Recall that the First Amendment trumps the right of publicity if the video game adds significant new expression to its use of the celebrity’s likeness.
A great example is Kirby v. Sega of America, Inc., 144 Cal.App.4th 47, 52 (2006), a case involving a popular 90s dancer named Keirin Kirby who sued Sega for misappropriating her identity. Kirby accused Sega of turning her into a virtual character called “Ulala” in Sega’sSpace Channel 5 console game. The game had an endearing premise:
“Ulala is dispatched to investigate an invasion of Earth by dance-loving aliens who shoot earthlings with ray guns, causing them to dance uncontrollably.”
Story of my life.
What did the Kirby court find? Initially, it agreed that Ulala was similar to Kirby in certain respects:
Ulala’s characteristics and computer-generated features resemble Kirby’s. Both images are thin, and have 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. In addition, Ulala’s name is a phonetic variant of “ooh la la,” a phrase often used by Kirby and associated with Kirby. Finally, as the trial court pointed out, both Kirby and Ulala used the phrases “groove,” “meow,” “dee-lish,” and “I won’t give up.” These similarities support Kirby’s contention her identity was misappropriated.
But according to the Kirby court, “notwithstanding certain similarities, Ulala is more than a mere likeness or literal depiction of Kirby.” Ulala had “sufficient expressive content to constitute a ‘transformative work.’” Specifically:
Ulala’s extremely tall, slender computer-generated physique is dissimilar from Kirby’s. Evidence also indicated Ulala was based, at least in part, on the Japanese style of “anime.” Ulala’s typical hairstyle and primary costume differ from those worn by Kirby who varied her costumes and outfits, and wore her hair in several styles. Moreover, the setting for the game that features Ulala — as a space-age reporter in the 25th century — is unlike any public depiction of Kirby. Finally, we agree with the trial court that the dance moves performed by Ulala — typically short, quick movements of the arms, legs and head — are unlike Kirby’s movements in any of her music videos. Taken together, these differences demonstrate Ulala is “transformative,” and respondents added creative elements to create a new expression.
Contrast this “gem” of legal analysis with a February 8, 2010, unreported order from the Northern District of California in Keller v. Electronic Arts:
EA’s depiction of [Sam Keller] in “NCAA Football” is not sufficiently transformative to bar his California right of publicity claims as a matter of law. In the game, the quarterback for Arizona State University shares many of [Keller’s] characteristics. For example, the virtual player wears the same jersey number, is the same height and weight and hails from the same state. EA’s depiction of [Keller] is far from the transmogrification of the Winter brothers. EA does not depict [Keller] in a different form; he is represented as he what he was: the starting quarterback for Arizona State University. Further, unlike in Kirby, the game’s setting is identical to where the public found [Keller] during his collegiate career: on the football field.
Has Arnold been “transmogrified” in Starcraft II? Is a space-age fantasy setting involving aliens “identical” to where the public found Arnold during his movie career? What about Total Recall(1990)? Or how about combining Predator (1987) and Terminator (1984)? What about the fact that the Thor unit has many original lines? Or that all players hear is a faux Austrian voice? Is the Thor intended to lampoon Arnold in the same way as the Simpsons’ character McBane? (It certainly seems so.)
In the end, there are some good facts for Arnold, but the First Amendment gives Activision-Blizzard a very strong defense. Now get to the choppa!