from the cartoonish dept
Likeness and publicity rights have become a popular tool for censorship these days, often with a focus on someone whining about something they don't think is fair, despite it being perfectly legal. What's been allowed to occur has been the expansion of a permission culture that is squarely at odds with First Amendment principles in almost every respect. The depiction of public figures in art and entertainment, particularly when serving as some kind of commentary or comedy, should so obviously be protected as speech that I wonder how we even got to a point where our culture is now entertaining court cases over such things. And yet the cases keep coming,
Such as the recent lawsuit filed by famous arcade-playing star Billy Mitchell, most famous for holding the world record in the classic arcade game Donkey Kong. He recently sued the Cartoon Network over a parody depiction of him in the show "Regular Show." You see, Mitchell brought this suit because the show includes a disembodied floating head of a character named Garrett Bobby Ferguson, whose main attributes appear to be his being incredibly annoying and flamboyantly self-promoting, and his being a world record holder of an arcade game. Mitchell's filing describes his problems with this head-character thusly:
Defendants, CN and CNS, have developed a television show entitled Regular Show which utilizes a character named Garrett Bobby Ferguson (GBF), which character is clearly based exclusively on the likeness, appearance, mannerism and persona of Billy Mitchell.Just so that's clear, Mitchell saw a cartoon character that's a floating, annoying head and decided that it was of sufficient likeness to himself to sue over it. And, to be fair, the character is admittedly based on Mitchell and his reputation. But so what? The depiction of the character within the show, in addition to having a completely different name, is so cartoonishly skewed and exaggerated for comedic effect as to be clear parody. If any depiction loosely based on someone's likeness deserves First Amendment protection, it's this one.
And the court's ruling heartily and hilariously agrees.
The GBF character resembles Plaintiff because both have long black hair and a beard. GBF also has a similar backstory to Plaintiff’s portrayal in The King of Kong, in that both held records at video games, and both are portrayed as arrogant yet successful, beloved by fans, and willing to go to great lengths to maintain their titles. But while GBF may be a less-than-subtle evocation of Plaintiff, GBF is not a literal representation of him. The television character does not match the Plaintiff in appearance: GBF appears as a non-human creature, a giant floating head with no body from outer space, while Plaintiff is a human being. Nor does GBF’s story exactly track Plaintiff’s biographical details. GBF holds the universe record at Broken Bonez; Plaintiff held the world record at Donkey Kong. GBF 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 his submission of a filmed high score. Plaintiff himself acknowledges that GBF is not a literal representation of him when he states that “[t]he actions of this character . . . make me look like some sort of monster, or creature, with no heart or decency. This is simply not me.”Yes, as it turns out, basing a character off of a real-life self-promoting arcade-game champion and then bending the character by making it a floating head with cartoonishly evil character traits such that it is an obvious parody for humor purposes qualifies as transformative and, therefore, worthy of First Amendment protections. Mitchell is left in the unenviable position of claiming that the character is violating his rights by being evil and obnoxious, while at the same time arguing that he's not evil and obnoxious.
Also, his head doesn't explode, as the court rightly notes:
Rather than merely being recognizable by his hair and beard, GBF appears as only hair and a beard. Rather than holding the world record at a well-known game, GBF holds the record for the entire universe. Rather than questioning his opponents’ honesty, GBF simply begs his opponents to let him keep his high score. And when GBF loses his title, the character literally explodes, unlike Plaintiff.The ruling really only points out the obvious, but it's still nice to see the courts get a likeness rights case right when we see too many go the other direction.