Yes probably, is the answer. Read on for my explanation…
Kotaku has written a piece on The Politics of Presidential Appearences in Video Games, triggered by President Obama’s appearance in Madden NFL 11. Which has got me thinking: could UK Prime Minister David Cameron object to be included in a video game?
The legal bit:
The US has a well-developed legal principle called the ‘right of publicity’ or ‘personality right’ which is essentially the right of an individual to control the commercial use of his/her name, image, likeness or other unequivocal aspects of his/her identity. Using this right, a celebrity can object to his likeness appearing in any form of media (including games) unless the author seeks prior authorisation – for which the celebrity will almost certainly charge a licence fee.
The right of publicity is a complex and fast-evolving area of law which is increasingly becoming relevant to games, particularly sports games. So, for example, Cnet reported in August 2010 that a class action lawsuit has been commenced by approximately 6,000 NFL players against EA over allegations that their likenesses appear without prior authorisation in Madden games.
Consequently, President Obama could under US law in theory take legal action over his likeness appearing without prior authorisation in a video game. Of course, there’s a big question over whether he would want to do that though (and see more on that in the Kotaku piece).
What the UK says:
There is no equivalent right of publicity under English law. The courts have considered (and are still considering) the matter through case law but so far their approach has been that individuals do not need a right of publicity (if they feel sufficiently strongly about an unauthorised use of their likeness, they can rely upon other legal remedies such as passing off, but the application of such remedies to celebrity publicity cases is untested as far as I know). Or, I suppose, he could potentially rely upon defamation law if the effect of including him in a game was defamatory.
So, I think that – unless he wanted to try some clever legal arguments like passing off or defamation – Prime Minister Cameron probably couldn’t sue if his appearance appeared in a game.
Although, obviously don’t take my word for it – there’s nothing to stop him (or any other UK-based celebrity for that matter) trying…!
The big question is not so much whether a UK celebrity can or cannot stop his likeness being commercialised without authorisation, but whether he should be able to stop it. This is something a lot of legal commentators have been looking at – what do you think readers?
Image credit: Daily Mail (shudder)
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