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Courts Are Split On Tests for Right of Publicity
The California Court of Appeal relied on a similarity test in prior California Supreme Court cases in recently finding that three video-game companies had a First Amendment right to create a character that shared some traits with Kieren Kirby, or 'Lady Miss Kier,' the former lead singer of the 1990s funk band Deee-Lite. Kirby v. Sega of America, 144 Cal.App.4th 47, 50 Cal.Rptr.3d 607 (Calif. Ct. App.). But in a 2003 Missouri Supreme Court decision involving former St. Louis Blues hockey player Tony Twist, the judges found that Twist might have a case alleging that his name and likeness were exploited to sell the comic book 'Spawn.' Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003).
Courtney Palko, a lawyer at Los Angeles-based Blecher & Collins who represents Kirby, said: 'Now that there's this Missouri case out there, I think there is a square split [in the courts].'
Kirby filed suit in 2003 against the makers of a video game featuring a character named Ulala, a reporter in the 25th century who wears a short skirt and platform boots and has pink hair ' all physical similarities to Kirby. In its ruling, the California appellate panel granted summary judgment after finding too many dissimilarities.
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