My two scenarios is I have a friend who likes a certain celeb and I want to put him in the game with the celeb. As in “hello, I am NPC Johnny and this is my wife Taylor Swift!”
Or
“Look it’s the horrible witch named “my-sisters worst-enemy-in-real-life”
Any problem with that other than taste? Do I have to put some kind of disclaimer saying “any resemblance to a real person is purely coincidental”
Thanks!
Any issues with making NPCs of real people?
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That depends on how far you go and what the context is.
First, your disclaimer can only work for accidental similiarities - as soon as you combine several identifiying properties (like name and looks, especially for celebs) that disclaimer is useless because you then made an intentional resemblance instead of an accidental one.
Second, the limitations are the same as with Photos - every person has the right to their own appearance, and you need their agreement to publish their photos unless it's very specific circumstances.
Check the "fair use" rules and limitations as an example - you cannot claim fair use for everything, a lot of people who do often break the requirements for "fair use", which are extremely specific and NOT a blanket toleration for everything you do.
So yes, if you place a celeb in your game and have that game outside the fair use limits, then that celeb can force you to delete that game. And 90% of all games are outside the fair use rules, because only if the game is obviously a parody that fair use can be applied.
Yes, there are a lot of cases where people break those rules and still get away with it, never hearing anything about takedown notices. That has two very specific reasons however:
1) the celeb needs to learn of the existance of your game to take action against it.
Only the celeb can take those actions, no one else - which means that a lot of cases are only save as long as they stay obscure and unknown, as soon as the game becomes known to a wide public the chances of getting to the celeb will be greater.
2) having a lawyer create a C&D against such a game costs money, and if you don't have income to be sued that money is a loss. So it depends on the exact content if the celeb would pay that money - if you insult them it's more likely than if your game could be seen as a homage.
Selling the game would create income however, so any commercial use of the result is almost guaranteed to get you targeted. -
Thanks for the detailed reply! Would something as simple as changing the name ever so slightly get me out of this? Ie Tay Swift? Also, speaking philosophically, and not disputing you, there might be several blond Taylor swifts out there. How can they be sure we are talking about them? This taylor swift is Johnny NPCs wife living in JRPG land asa milk maid, not the one in 21st century US making records.That depends on how far you go and what the context is.
First, your disclaimer can only work for accidental similiarities - as soon as you combine several identifiying properties (like name and looks, especially for celebs) that disclaimer is useless because you then made an intentional resemblance instead of an accidental one.
Second, the limitations are the same as with Photos - every person has the right to their own appearance, and you need their agreement to publish their photos unless it's very specific circumstances.
Check the "fair use" rules and limitations as an example - you cannot claim fair use for everything, a lot of people who do often break the requirements for "fair use", which are extremely specific and NOT a blanket toleration for everything you do.
So yes, if you place a celeb in your game and have that game outside the fair use limits, then that celeb can force you to delete that game. And 90% of all games are outside the fair use rules, because only if the game is obviously a parody that fair use can be applied.
Yes, there are a lot of cases where people break those rules and still get away with it, never hearing anything about takedown notices. That has two very specific reasons however:
1) the celeb needs to learn of the existance of your game to take action against it.
Only the celeb can take those actions, no one else - which means that a lot of cases are only save as long as they stay obscure and unknown, as soon as the game becomes known to a wide public the chances of getting to the celeb will be greater.
2) having a lawyer create a C&D against such a game costs money, and if you don't have income to be sued that money is a loss. So it depends on the exact content if the celeb would pay that money - if you insult them it's more likely than if your game could be seen as a homage.
Selling the game would create income however, so any commercial use of the result is almost guaranteed to get you targeted. -
personality laws are civil laws, which means no one can stop anyone from suing you if they feel that you went free with their data. The only problem for them is that they have to pay for all lawyers if the judge decide they're wrong - but that is after you've been sued and have had the stress of defending yourself.
if there is enough similiarity to be recognizable, then they can use that - and if there is not enough similiarity then you don't get the impression you want.
So no one (other than a paid lawyer) can give you a definite answer, it's entirely up to you. Unless of course you want to pay a lawyer to get that definitive answer. -
This is a REALLY gray area. Any time you are using someone else's likeness without their explicit permission, you're treading into dicey territory. There are some things that are clearly OK, like making a cheeky, non-named reference to a celebrity... there are some things that are clearly not OK, like using a celebrity's name and likeness to endorse something (without permission). Then there's a lot in-between. Andar gave a few good examples of how things fall in-between, including whether it's commercialized, and also consider the difference between parody (such as SNL and Disgaea) and slander.
Also worth noting is that non-"public" (read as 'well-known') citizens have stronger rights to privacy and anti-slander than public faces do. The more you take potshots at non-public people, the more justification they will have in forcing you to take it down (or even sue if you've materially hurt them through your defamation) under threat of legal action per slander laws. Of course if your game is something that just circulates amongst your friends, this will never be an issue as they'll never see it. But just be careful about making such games public. -
It's a legal problem. As a law student, this is a complicated issue. Theoretically someone could sue you for defamation or slander. However the law regarding those matters is quite different depending on where you're from and where that person lives. Even if you've respected the law's conditions, that person could still sue you and you'll have to convince the judge.
Don't forget that in civil lawsuits, the "guilty beyond reasonable doubt" doesn't apply, so you'll have to be convincing. Are you okay with having people that can sue you?
Then again, the chances of that person ever finding out, meaning discovering your game, downloading it, playing it until the event occur, is pretty low. Even if they found out, they might not sue.
If you really want to include someone's name, do it in a manner that that particular person is not identifiable with your character's characteristics only. -
If you want to play it safe, use a parody name.
“Hello, I am NPC Johnny and this is my wife Swaylor Tift!” would be perfectly fine. -
Something to ask yourself is why you wish to include these NPCs. Is it just for humour and comedy reasons or is there an actual in-story reason why?
If its just for comedy or as a small reference then its often best not to focus on their appearance or name but their personality and well-known traits.
To give an example: in the original Digimon 'cartoon' (I'm referring to the English dubbed version), there was a villain called Etemon who was clearly an over-exaggerated Elvis. This was in most part due to the way he acted not his appearance or name. -
I recall a scene from the Arc the Lad series.. where they were spoofing a very popular actor (at that time) Leonardo Dicaprio in the game. The NPC in the game was referred to as Leon Dicarpicio.. or something along those lines.. this was over 20yrs ago.. so.. :)
But, you can make a reference that some of your audience may get, and the ones who don't get it won't even notice. :)
-MIA -
Also, keep in mind one thing that names aren't exclusive to anyone. There are people who share name with Hitler, Trump, Hillary, and they still exist legally. You can just make up a character named Trump, but not look exactly like him, and it won't be a problem.
I don't know if these people will bother going after you, honestly. There was a joke game with Arnold as the main character, and I don't think anyone got sued. -
Either the person in question gets the reference in a way that understands the intent (and gives you a pass for good sportsmanship) or you p*** them off so much that you have to either successfully defend your intentions, or you patch out the scene, recall the entire game or perhaps even both. As you would expect, absent an understanding of intent and/or publicity support the latter two options are more likely than not in such a case. Double that if it's by request e. g. alternative suggestions (advice on reasonable modifications) or you run into a bad case of irreconcilable complications (if not absolute slander but still bad enough for a C&D situation).
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Also, keep in mind one thing that names aren't exclusive to anyone. There are people who share name with Hitler, Trump, Hillary, and they still exist legally...
I don't know if these people will bother going after you, honestly.
Hitler definitely won't be going after him. :mrsatan: -
But German politics can still do it, however. This is one reason why it literally took decades to reach an understanding on the Wolfenstein series, to name a big-budget example. Not exactly apples VS. oranges but the same logic applies to all levels of game development because of the fact that it is so integral to German history by mere coincidence alone.
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It's settled then. I feel obligated to create "Adolph Trump," featuring a big dark swoopy hairdo and little blonde mustache. And tiny hands.Also, keep in mind one thing that names aren't exclusive to anyone. There are people who share name with Hitler, Trump, Hillary, and they still exist legally. You can just make up a character named Trump, but not look exactly like him, and it won't be a problem.
I don't know if these people will bother going after you, honestly. There was a joke game with Arnold as the main character, and I don't think anyone got sued. -
Another consideration (which the Leonardo DiCaprio reference made me think of) is that these things have the potential to make your game feel dated in a few years. Four years from now the political scene will be different, the celebrity scene will be different, and we will be mocking different people. Your Taylor Swift reference will eventually be about as relevant as a Spice Girls joke. So, unless your game is meant for this year and this year alone (like a lot of political cartoons and other topical humor) you will need to think about how your joke will work for future audiences.