When I was a kid, cartoons and video games were far simpler than they are now. We watched Tom and Jerry and played Donkey Kong. The cartoons my kids watch today are often bizarre and the video games they play are way too complicated. A recent lawsuit in federal court, Mitchell v. The Cartoon Network, brought the old and new together, however, as a man who once held world records in Pac Man and Donkey Kong sued because his likeness was allegedly misappropriated in one of those new cartoons my kids like, "The Regular Show." (Incidentally, before you think I am just turning into a curmudgeonly old man, check out "The Regular Show" some time. It is hardly "regular".)
Plaintiff in Mitchell was a "well-known figure in the video gaming community." In addition to holding world records in both Pac Man and Donkey Kong at various times, he also competed in international gaming competitions, and even had his own trading card. But, he is perhaps most famous for his role in a documentary called "The King of Kong: A Fistful of Quarters," which "chronicles another gamer's attempt to surpass Plaintiff's world record for the game Donkey Kong." The district court described plaintiff's appearance in that film as follows:
In the film, Plaintiff is portrayed as succesful but arrogant, beloved by fans, and at times, willing to do whatever it takes to maintain his world record. In particular, the film shows Plaintiff attempting to maintain his world record by questioning his opponent's equipment and the authenticity of his opponent's submission of a filmed high score.
Plaintiff claims that defendants misappropriated his image for use in several episodes of "The Regular Show," which the district court noted is a show that "revolves around the adventures of two anthropomorphic animals, a blue jay named Mordecai and a raccoon named Rigby." One episode in the series included a villain named Garrett Bobby Ferguson, who appeared as a "giant floating head from outer space, with long black hair and a black beard, but no body." In the episode, Mordecai and Rigby are trying to break Ferguson's world record in a game called Broken Bonez that they play at their local coffee shop. (Yes, kids, we used to have to leave the house to play our favorite video games.) After they break the world record, the disembodied Ferguson appears to brag that he still holds the "universe record." Mordecai and Rigby then challenge Ferguson to play for that record. They almost beat his record, but then "throw the match when [Ferguson] begs them to let him win, claiming that he [ ] devoted his entire life to the game, that he played so much his wife left him, and that the universe record is all he has." After Mordecai and Rigby lose, however, Ferguson reveals that he was lying about it all. Mordecai and Rigby then go back and beat Ferguson's "universe record," at which point, the "enraged [Ferguson] explodes into goo." (When asked at breakfast if they ever saw this episode, two of my kids said they had, and they loved it.)
Plaintiff alleged that defendants misappropriated his image, and that they did so to "legitimize" their show and increase sales and profits. Defendants moved to dismiss the lawsuit. They acknowledged that Ferguson was an "obvious parody" of plaintiff but that their use of plaintiff's image was protected under the First Amendment. The district court agreed and dismissed the complaint.
The district court noted that New Jersey law recognizes that "the right to exploit the value of an individual's notoriety or fame belongs to the individual with whom it is associated." This is the so-called right of publicity. As you might imagine, this right of publicity frequently runs into the First Amendment, which protects freedom of expression in entertainment. To determine whether these First Amendment rights must yield to the right of publicity, New Jersey courts use something called the "Transformative Use Test." In its simplest terms, this test asks whether the use of a plaintiff's likeness is "merely a copy or imitation" or whether a defendant has "add[ed] something new, with a further purpose or different character, altering the first with new expression, meaning, or message." The First Amendment protects the latter, but not the former. "This is because works of parody or other distortions of the celebrity figure are not, from the celebrity fan's viewpoint, good substitutes for conventional depictions of the celebrity and therefore do not generally threaten marks for celebrity memorabilia that the right of publicity is designed to protect."
In Mitchell, the district court concluded that while Ferguson may have been a "less-than-subtle evocation of Plaintiff," he was not a "literal representation" of Plaintiff, therefore defendant was entitled to First Amendment protection. The court noted the differences between the real-life plaintiff and the fictional Ferguson as follows:
The television character does not match the Plaintiff in appearance; [Ferguson] appears as a non-human creature, a giant floating head with no body from outer space, while Plaintiff is a human being. Nor does [Ferguson's] story exactly track Plaintiff's biographical details. [Ferguson] holds the universe record at Broken Bonez; Plaintiff held the world record at Donkey Kong. [Ferguson] attempts to maintain his universe record through crying and lying about his backstory; Plaintiff maintained his world record by questioning his opponent's equipment and the authenticity of a filmed high score.
Most importantly, the district court noted: "[W]hen [Ferguson] loses his title, the character literally explodes, unlike Plaintiff."
Ultimately, the district court held that, by "exaggerating Plaintiff's well-known traits to make [Ferguson] 'cartoonishly evil,'" defendants "added something new, transforming their appropriation of Plaintiff's likeness and making their television show a poor substitute for conventional depictions of Plaintiff." As a result, "The Regular Show" avoided liability.