Posternak Blankstein & Lund LLP is now Arent Fox. Read the press release

Imitation the Sincerest Form of Flattery? Court Dismisses Video Gamer’s Right of Publicity Claim

A judge in New Jersey federal district court recently dismissed a lawsuit brought against The Cartoon Network by a renowned video gamer.

In particular, the plaintiff claimed in Mitchell v. The Cartoon Network, Civ. No. 15-5668 (D.N.J., November 20, 2015), that the network violated his right of publicity by depicting an animated version of him, without permission, in an episode of The Regular Show. The court, however, disagreed, holding that the network’s representation of the plaintiff was a parody entitled to First Amendment protection.

Background on the Case

Plaintiff Billy Mitchell is well known in the video game community. Among his many gaming achievements, Mitchell has, at various points, held the world record for high scores in the iconic arcade games Pac-Man and Donkey Kong. Mitchell is recognizable by video game aficionados for his distinctive appearance and attire, sporting long black hair, a black beard, black clothes, and an American flag tie. Notably, Mitchell was featured prominently in a popular video game documentary, The King of Kong, where he was depicted as arrogant and obsessed with maintaining his video game records.
In his complaint, Mitchell claimed that his likeness was misappropriated for an episode of The Carton Network’s animated program The Regular Show in the form of character “Garrett Bobby Ferguson.” In that episode, the character was depicted with long black hair and a black beard, and claimed to hold the “universe record” for a fictional arcade game. As the network admitted, the character’s obsessive personality was inspired by Mitchell’s depiction in The King of Kong. The network claimed, however, that the depiction of Mitchell was a parody entitled to First Amendment protection.

The Court’s Opinion: Publicity Rights vs. the First Amendment

The court agreed. Although Mitchell successfully made out a prima facie publicity claim, the court held that the First Amendment demanded the dismissal of the suit. The court applied the “transformative use” test, balancing the competing interests of Mitchell’s control over his persona and the network’s free speech rights. Representations that copy or directly imitate an individual’s likeness tend to be non-transformative and, thus, not entitled to First Amendment protection. By contrast, the court explained, “works of parody and other distortions of the celebrity” add something new and “generally do not threaten markets for memorabilia that the right to publicity is meant to protect.”
While the court admitted that the Garrett Bobby Ferguson was a “less-than-subtle evocation of” Mitchell, the character was not a literal representation of the plaintiff. The character was presented as a giant head floating in outer space—“an exaggerated version of the plaintiff distorted for lampoon, parody, or caricature,” the court explained. This “transformative use,” was entitled to First Amendment protection according to the court. Accordingly, it dismissed Mitchell’s complaint.


Continue Reading