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More Simulacra and Simulations

In response to the Sims' Oscar knockoffs, Marty Schwimmer of The Trademark Blog asks succinctly, "Right of publicity issues?"

The short answer:  Of course. 

The longer answer:  Welcome to the state law morass that governs rights of publicity.  In general, celebrities who have developed valuable personnae have the right to protect it from unauthorized commercial exploitation.  (Everyone's favorite case on this subject, for the amusing facts if not the outcome, seems to be Vanna White v. Samsung Electronics America, 971 F.2d 1395 (9th Cir. 1992), in which Vanna sued the company over an ad with a robot representing her.) 

What does that have to do with a Sim knockoff of an Oscar gown?  If the virtual gown for sale is depicted on the actress who wore it to the Academy Awards, that's an interesting question.

Designers don't compete to dress celebrities out of concern that the poor girls can't dress themselves -- there are stylists for that.  Rather, the free gowns, shoes, handbags (and rumored monetary compensation) are offered in the hope that the celebrity will be photographed and the image will be frequently editorialized.  Money simply can't buy the kind of exposure that a Best Actress winner's dress will receive for free.  So the nominees, presenters, and other beautiful people are in effect renting their celebrity status; their bodies become billboards advertising fashion houses.  The ultimate idea is to draw attention to the brand and sell more dresses -- real, not virtual. 

So, if we view the agreements between designers and actresses as a financial transaction, the use of an actress' image to sell a virtual gown might violate her right of publicity.  After all, what if Reese Witherspoon wanted to make money by modeling virtual gowns (as a Sim, she's certainly tall and thin enough)?  It's a good thing that at the moment her real world far eclipses any virtual one.

For more on law in virtual worlds, check out James Grimmelman's interesting and intelligent article and blog.

And for further reflection on the philosophy of copying, see Jean Baudrillard -- whose text also has a cameo in The Matrix



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» Carnivale of Couture @ Counterfeit Chic: Round 2 from Counterfeit Chic
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I find this issue to be very interesting, because of how well it highlights the fact that technology and the internet make us rethink traditional ideas of law, especially property. It's tough to find cases that so clearly arise out of a purely virtual world like The Sims.

In contrast to my usual opinion on issues of property online, I think there is a lot to be said for the rightsholder's side here, especially when a copied design is specifically labeled or marketed as a copy of their design, so that the theft is clearly identifiable. In cases like this and your subsequent post on the appropriation of Kara Janx' design (my girlfriend made me watch tons of Project Runway over spring break), it seems to me that any advertisement of a knockoff by reference to its original designer violates a right to publicity. That right isn't diminished in an online context, nor should it be, unlike many other rights (see the entire field of intellectual property). Assuming there is a market to make money through internet-based advertising (and, clearly, there is such a market), I think they could regulate it at least as strictly as is the corporeal realm (which might not be much).

Another issue is that removing a dimension, or even scaling down to a computer version, removes a lot of the complexity of the original design. Consider also the limited color palette of the web. At some point, copies of designs that differ dramatically in real life will appear very similar on the web. Should the fact that the medium forces everything to look generic change the fact that something is being touted as a copy of a designer? For instance, if a trial did arise out of The Sims case, much would be made of how imperfect a copy the online dresses are.

Either way, it seems to me that a right of publicity is clearly violated when something is marketed as being a copy of an original designer. What are the leading cases covering things like designer impostor colognes and such? I think a lot of leeway should be given to designs claiming to be original which happen to be similar to designer looks, but that should get thrown out of the window when they use the designer's name to advertise.

Corollary: I'm sure you're familiar with the DMCA. Several years ago, I received a copyright violation notice for files I was allegedly offering for download. Indeed, one could login to an FTP site I hosted and see the names of many enticing files. However, no one was allowed to download those files. I informed the complaining company of this fact, and they said that they also own the rights to the titles of the songs and the band names, and that sort of thing, and that using those filenames to entice users was a violation of their right of publicity. I talked to one lawyer at the time who seemed to agree. If that would be illegal in the context of DMCA copyright issues, why not in the issue of knockoff fashion, assuming that we're limiting our discussion to the right of publicity?

David, thanks for the great (and great many!) observations.

The clearer approach to many of these issues with respect to a designer (rather than a celebrity modeling a gown) is not rights of publicity -- which attach to an individual's own person or personna, rather than a detached product -- but trademark. Given that current U.S. law allows copying Kara's hat or Vera Wang's gown, the copyist can also use the designers' trademarked names to describe the goods, so long as there's no implication that the designer made or endorsed the copies and that the copyist uses only as much of the trademark as necessary (i.e. name only, not symbol or typeface). Similar reasoning applies in the designer imposter perfume cases that you reference. (You might be interested in the descriptions of this kind of "classic fair use" and also of "nominative fair use" in New Kids on the Block v. News America Publishing, 971 F.2d 302 (9th Cir. 1992).) If a photo of the designer herself were used by a competitor, rights of publicity would be more likely to come into play.

Your intuitions on this topic are interesting, though, since they emphasize the personal relationship between a creator and his/her product. The European civil law of copyright under the rubric of "moral rights" recognizes this connection more explicitly than Anglo-American law does. The moral rights, which are separate from but related to the usual economic rights associated with intellectual property, attempt to protect the reputation and professional identity of the creator, which are in many ways linked to his/her creations. Although much of the U.S. IP community disregards or disfavors moral rights (incorrectly, in my opinion), Professor Roberta Kwall has done some groundbreaking work on the topic.

With respect to your clash with the music industry, let me first note that you chose to joust with a rather aggressive bunch. That being said, if your use of trademarked band names exceeded any necessary, descriptive use and was just intended to entice users, that would be considered an attempt to appropriate the goodwill of the trademark holders for yourself -- and would be barred. The analysis would be different if you were promoting a particular new band that sounded like one or more of those that you'd listed, and you made clear the connection. And once again, if you used pictures of members of other bands, there could be a right of publicity problem.

Obviously, there's much more work to be done in this area!

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