Personality Rights in Virtual Spaces
London, July 23, 2008
Dr. Andreas Lober
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Overview
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Personality Rights
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Right to publicity
Right to privacy
Offence, insult, grief
Undesired advertising
Data protection
Commercial exploitation
(name, looks, voice,
likeness)
Non-commercial use
(name, looks, voice,
likeness,…)
Communication
(chat, forum,
gestures,…)
Data protection
(collecting and processing
personal information)
Undesired advertising
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Cases
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Lady Kier vs. Sega (Space Channel 5)
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Lady Kier vs. Sega (Space Channel 5)
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Lady Kier vs. Sega (Space Channel 5)
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Lady Kier vs. Sega (Space Channel 5)
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Lady Kier vs. Sega (Space Channel 5)
• Kierin Kirby (aka Lady Kier): Sega wanted to have her in the game, she declined, Sega
released the game anyway
• Sega: Game was released in Japan before Lady Kier was contacted, and Japanese
creators of the game did not even know Lady Kier
• Court:
• Videogames are creative, expressive works entitled to protection unless they are
false or misleading (1st Amendment of Californian Constitution).
• Though Kirby and Ulala share many similar traits, sufficient differences — dress
and dance moves in particular — existed to find that even if Sega had used Lady
Kier as inspiration, they had also added their own unique and highly protected
creative expression
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Oliver Kahn vs. Electronic Arts
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Oliver Kahn vs. Electronic Arts
• Electronic Arts: Use of Oliver Kahn‘s personality is permitted even without a license, as
the game was based on the world cup
• General principle of German law: The concepts of an „absolute or relative person of
contemporary history" (i.e. public person) allows the depiction of individuals who are
part of history when shown in this context
• Court: Violation of Oliver Kahn‘s rights is severe, as the player can make him move like
a puppet and even perform ridiculous actions
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Anshe Chung
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(well, not a case, actually)
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Principles
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What we know
• Avatars do not have personality rights – their users do (Avatars may be protected under
copyright or trademark laws, though)
• Right to publicity can be infringed upon by game characters (and therefore by Avatars
as well)
• Fair use, free speech and other restraints/justifications
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Difficulties
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Unsolved problems
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Potential liability of the operator
Detection/recognition of celebrities
Many different laws
Consent of the person
• Same name, different person
• Underage person
• Form of consent
… is authentication the key?
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Anshe Chung … again?
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The crystal ball
Avatars as part of their owners personality?
• Currently, Avatars can be protected under copyright law
• One day, they might also be protected as a personailty right – or are they already
protected?
• US state of Indiana today protects not only name, image, and likeness, but also
photograph, signature, gestures, distinctive appearances, and mannerisms.
• In Germany, the personality in its entirety is protected (social sphere, private
sphere, intimate sphere), inculding but not limited to its commercial exploitation, but
freedom of speech, freedom of press, freedom of the arts, freedom of research
have to be taken into account.
• Protection of Avatars under personality law might be broader than under copyright
law (scope of copyright is narrow and limited – only the expression of an idea is
protected, cf. also derivative works)
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SCHULTERIESENKAMPFF
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Contact
SCHULTERIESENKAMPFF
Rechtsanwaltsgesellschaft.
Hochstrasse 49
60313 Frankfurt am Main
Germany
phone:
fax:
+49-69-900 26 6
+49-69-900 26 999
[email protected]
www.schulte-lawyers.com
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