By: Anthony Williams
In December 2018, American video game and software development company Epic Games, Inc., was sued by rapper 2 Milly (Terrence Ferguson), Carlton from The Fresh Prince of Bel-Air(Alfonso Ribeiro), and Backpack Kid (Russell Horning) for right of publicity claims, stemming from what they consider Epic Games unauthorized use of their signature dance moves in the video game Fortnite Battle Royale (“Fortnite”).
What is the Right of Publicity?
The right of publicity grants an individual control over their likeness or persona for commercial purposes.Currently, there is no federal statue protecting the right of publicity, leading to diverging state statutory and case law.Pierce Bainbridge Beck Price & Hecht LLP likely brought suit on behalf of Ferguson, Riberio, and Horning in the state of California because it is a state that recognizes both a statutory and common law right of publicity.Additionally, the transformative use test expressed by the California Supreme Court in Comedy III Prods., Inc. v. Saderupis the leading and most recognized test to determine misappropriation of publicity rights.
Transformative Use Test
The transformative use test balances the First Amendment right of expression against an individual’s proprietary interest in their likeness or persona.To qualify for First Amendment protection, new works must add meaningful creative components so as to “transform the work into something more than a celebrity likeness or imitation.”The transformative uses test is essentially a spectrum, where at one end there are works that are highly transformational, which creates “fanciful characters, placed amidst a fanciful setting, that draw inspiration from celebrities.”At the opposing end are works that are unvarying which are “mere literal depictions of celebrities recreated in a different medium.”
Social Justice and the Right of Publicity
The right of publicity is a great tool to ensure entertainers are compensated for the labor and capital used to develop a popular image or persona. Individuals from marginalized communities are more susceptible to misappropriation of publicity rights due to the lack of uniformity in the law. Hopefully the claims asserted by Ferguson, Ribeiro, and Horning will spur a federal right of publicity statue.
Meagan Flynn, Is Fortnite stealing black dance culture? The creator of the ‘Milly Rock’ argues yes in a new lawsuit, The Washington Post (December 6, 2018), https://www.washingtonpost.com/nation/2018/12/06/is-fortnite-stealing-black-dance-culture-creator-milly-rock-argues-yes-new-lawsuit/?utm_term=.bda592d4c757.
See Lateef Mtima, What's Mine is Mine but What's Yours is Ours: IP Imperialism, the Right of Publicity, and Intellectual Property Social Justice in the Digital Information Age, 15 SMU Sci. & Tech. L. Rev. 323, 341 (2012).
See Kevin L. Vick and Jean-Paul Jassy, Why a Federal Right of Publicity Statute Is Necessary, 28 Comm. Law. 14 (2011).
Cal. Civ. Code § 3344. Protects a person's: name, voice, signature, photograph, and likeness.
SeeLateef Mtima, So Many Waters Under This Troubled Bridge: Navigating Right of Publicity Jurisprudence, 50 IDEA 213 (2018).
Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 404 (2001).
Hart v. Elec. Arts, Inc., 717 F.3d 141, 161 (3rd Cir. 2013).