Ellen Page And The Strange Case Of The Misappropriated Likeness

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It’s been a weird couple of months for Ellen Page, the elfin actress behind Juno. A few months ago, her likeness was stolen for the hit video game The Last of Us. Now, a video game that she actually participated in and lent her likeness to, Beyond: Two Souls, has featured her in a digital nude shower scene, pictures of which leaked without her consent, and which show the whole shebang.

Let's talk about The Last of Us first. Back in June, the video game made a splash, and not just because it was a critical hit. One of the game's main characters, Ellie, looked suspiciously like Page, so much so that people were asking Page if she acted in the game (she didn't). In fact, early concept art of Ellie art didn't just resemble Page, it was clearly her face.  Behold!

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The one on the left is the concept art of Ellie and the middle is the version of Ellie that appears in the game, altered to look less like Page. If you're not convinced by these side-by-sides, just google "last of us ellen page" and you'll see comparison after comparison. What's striking is how even after the developer, Naughty Dog, changed Ellie's appearance, she pretty much still looks just like Page.

Anyway, Page caught wind of this and instead of suing the pants off Naughty Dog, she said this:

I guess I should be flattered that they ripped off my likeness, but I am actually acting in a video game called Beyond: Two Souls, so it was not appreciated.

Naughty Dog is pretty lucky Page isn't lawsuit-happy because she has a solid case for Appropriation of Likeness, a tort that prohibits the use of someone's name or likeness for commercial purposes without their consent (in California, name and likeness are actually protected by statute - California Civil Code Section 3344(a)). If she decided to sue, she could put Naughty Dog out of business.

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So now we arrive at Beyond: Two Souls, the game that Page actually participated in by doing the voice and motion capture (see pic above) for her character. At one point, the game features a scene with digital version of Page's character taking a shower, all of her lady parts tastefully obscured. Unfortunately,  pictures from a developers-only version of the game leaked out, showing those lady parts in their entirety (Page, of course, did not pose nude for this scene. She filmed her role wearing a mo-cap suit - a leotard fitted with digital nodes that capture her movement).

Who's to blame? The game's developer, Quantic Dream, seems like the obvious target since it made the nude model to begin with; without the model, this controversy would never have arisen (in the law, we call this "direct causation"). But Quantic Dream claims that it made it impossible to view the model's lady parts within the course of normal gameplay. Their story is that an unauthorized developer took the model and filled in the blanks, as it were. So is Quantic Dream off the hook because someone found a way to view that model in an unintended way? And even if Quantic Dream was the right party, could Page sue the company for Appropriation of Likeness? She did permit the use of her face, after all, but does her "likeness" extend to her other features? Consider also that since Page didn't actually pose nude, all the "blanks" that were filled in by the unauthorized developer were done from imagination - does that alter the analysis? At this stage, it's unknown whether Page had an anti-nudity clause in her contract, and whether a 3D rendering of her body would qualify for the purposes of an Appropriation claim (there's some case law indicating that it might qualify). Basically, there are a lot of unknowns.

Here's what makes the whole thing even more fascinating: Sony, Beyond's distributor, is also the distributor for The Last of Us. This puts them in an awkward situation vis-a-vis their relationship with Page. Twice in one year she's become a victim of a high-profile game they released.  And once the pictures are out in the world, they're out there; there's no getting them back.

It'll be interesting to see if Page decides to pursue the matter legally. In the meantime, I'm sure she's learned her lesson: no more video games with Sony.

Tortious Interference on Parks and Recreation: How Rent A Swag Can Fight Back Against Tommy's Closet

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[Parks & Recreation is the best comedy on TV these days, so in honor of its new season, I've taken a look at one story issue that's been bugging me since last season's finale.  Enjoy!]

Tortious interference occurs when a person intentionally damages the  business relationships of another.  Parks & Recreation occurs at 8:00pm, Thursday nights on NBC.  The former is a type of civil liability imposed on one party who financially harms another party.  The latter is an exceptionally sweet and intelligent sitcom that none of you are watching.  What do the two have in common?  A lot, surprisingly.

Last season, Tom Haverford - played by Aziz Ansari as a pop-culture obsessed, clothes horse, mogul wannabe - started a business called Rent-a-Swag, a store where the "teens, tweens, and in-betweens" of Pawnee, Indiana could rent "the dopest shirts, the swankiest jackets, the slickest cardigans, the flashiest fedoras, the hottest ties, the snazziest canes and more!"  Per the store's fake website, "before you waste your money on something that won't fit in a month, or fight with your parents over that sick velvet blazer they won't buy for you - step into Rent-A-Swag."  It's a good idea, right?

Anyway, the business took off and Tom was thisclose to leaving his job at the Parks and Recreation Department.  Unfortunately, Tom discovered that a competitor opened a rival store directly across the street called Tommy's Closet.  The competitor (whose identity I won't reveal here) informed Tom that Tommy's Closet was designed specifically to drive Rent-a-Swag out of business.

I don't know how the Parks & Recreation writers intend to resolve the situation (it will likely be sweet and goofy), but if I was Tom's attorney, I would advise him to sue the pants off (hehe) the owner of Tommy's Closet.  In tort law, there's something called tortious interference with an expected economic advantage and it gives business owners a way to stop those who maliciously attempt to drive expected consumers away from their business.  To win, Tom would have to prove that:

  1. Tom had a reasonable expectation of economic benefit from the operation of Rent-a-Swag,
  2. The competitor had knowledge of that expectation,
  3. The competitor intentional interfered with Tom's expected economic benefit, and
  4. Tom suffered economic damage as a result of the interference.

It wouldn't be very entertaining to watch, but Tom would most assuredly win a lawsuit against his competitor.  First, Tom had a good reason to expect an economic benefit; he was already receiving it!  His business was booming during the tail end of Season 5.  Tom was even able to hire employees and pay dividends to his stockholders.  Second, the competitor told Tom (in front of other people, I might add... witnesses!) that he was aware of Rent-a-Swag's financial success.  In fact, during the Season 5 finale, he tried to buy Rent-a-Swag from Tom because it had become a known moneymaker.  Third, the competitor admitted his desire to drive Tom out of business out of a misplaced sense of revenge and was actively luring customers away with free pizza and prizes.  Finally, we see in the Season 6 opener that Tommy's Closet had succeeded in drawing customers away from Rent-a-Swag; the episode shows Tom alone in his store, all the customers having fled across the street.  Tom has clearly suffered an economic damage.

While these kinds of malicious actions are rare, they do happen.  Therefore it's important for all artists and small business owners to be aware that there are options available to them should they become victims of tortious interference.  As a rule, the law doesn't look kindly upon those who open a business solely to spite another business.  In the real world, Tom has options - and so do you.  Of course, this is TV and I'm sure that whatever the Parks & Recreation writers come up with, it will be a hell of a lot funnier than watching this play out in a courtroom.

[You can also make a credible argument that Tom has a trade dress claim - a form of trademark infringement that protects a store's interior design - against the competitor since we learn that the interior of Tommy's Closet looks exactly like the interior of Rent-a-Swag.]

Topless Celebrity Photos! Or How To Get Sued Like A Paparazzo

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A few weeks ago, I wrote this piece about how artists own the copyright to their work even after they've sold the physical manifestation of that work (i.e. retaining the copyright over a painting even after selling the physical painting to a buyer).  The post generated a lot of interest and in the ensuing discussion, I got several variants of this question:

"If I take a topless photo of [Hot Celebrity Female] at a secluded beach, can she interfere with my ownership over that photo and prevent me from mass producing it and make a mint?"

As with everything in the law, the answer is a resounding "kind of!" Hot Celebrity Female can indeed interfere with your ability to profit from selling topless photos of her to a tabloid... but not through manipulation of copyright ownership (which, I presume, is what the question was really asking). When the subject of your art is another person, they cannot interfere with your ownership of the copyright, nor can they claim ownership rights over that photo simply because they are the subject.  The copyright is vested only in the artist except in these three scenarios:

  1. Sale of the copyright to another (i.e. selling the photo and copyright to TMZ)
  2. Conveyance of the copyright through a bequest or gift (i.e. giving the photo and copyright to a family member or friend)
  3. Certain work for hire situations (usually on projects that require collaboration, like films)

"But," you might ask, "don't celebrities have ownership rights over their personal appearances?"  Nope.  Neither copyright nor trademark law offer protection over your personal appearance.  Trademark law DOES allow you to register many other visual elements such as logos, symbols, patterns, designs - but your personal appearance is not granted any protection under the intellectual property laws of this country.  This means that, unless you sell or gift the copyright, or the copyright isn't yours to begin with, there's really nothing that Hot Celebrity Female can do to interfere with your ownership.  If you are inclined to do so, you are free to take a highly compromising picture of her and sell or license that copyright to TMZ, The Daily Mail, The New York Post, and any other publication that profits from the exploitation of celebrity culture.  You'll probably make a small bounty doing that and in fact, there's an entire group of professional photographers who make their living precisely this way: the paparazzi.

But that's not the end of the story.  Owning the copyright to topless photos of Hot Celebrity Female does not give you an unassailable right to do whatever you please with those photographs.  Even though she has no ownership rights over the photos, she can still take you to court in a big way.  Everyone - from the lowliest plebe to the most glorious celebrity - has a right to a certain degree of privacy, and tort law provides several tools that allow people to fight an invasion of that privacy.

One of the more potent tools that celebs like to use is something called "appropriation of name or likeness."  An appropriation of name or likeness is considered an invasion of privacy when a person uses your name or likeness  for commercial purposes without your permission.  So when you take a compromising photograph of a celebrity, especially in locations where they have a certain expectation of privacy, you open yourself to liability.  That's why paparazzi and the magazines they sell to get sued ALL THE TIME.  Usually, if the celebrity is in a public place, like at a restaurant or on a red carpet, there's little they can do to fight publication of that image, so an appropriation of likeness claim won't go very far.  But when the photo is snapped in a private location (like in their backyards or on a balcony at a remote resort in the rain forest), you could end up losing all the money you made from selling that picture.  Remember last fall when some paparazzo snapped photos of a topless Kate Middleton on a secluded balcony using a telephoto lens? Do you remember the Royal family suing the french magazine that published them?  The magazine lost that battle because Princess Kate wasn't photographed topless at a public beach... she was on a private balcony that was obscured by tree cover.  The only way the photographer was able to get those photos was by using the kind of lens usually reserved for NSA spy satellites.

So the moral of the story... Hot Female Celebrity can't take away your ownership over that photo you took of her.  But she can, in some situations, prevent you from making money off of it.  You, as the photographer, have to decide whether all that trouble is worth it just to catch a glimpse of Kate Middleton's boobs.