<b><i>Online Extra:</b></i> Cartoon Network Not Liable for Using Video Gamer's Likeness

A federal judge in Trenton has dismissed a suit filed against The Cartoon Network by a video gamer who was parodied on one of the network's programs.

The network admitted that a character in its program 'The Regular Show' is patterned after Billy Mitchell, who once held record high scores in 'Donkey Kong' and 'Pac-Man.' But the parody is entitled to First Amendment protection under the transformative use test because the character is not a literal representation of Mitchell, U.S. District Judge Anne Thompson of the District of New Jersey ruled in'Mitchell v. The Cartoon Network, Inc.

Mitchell's suit claimed that his likeness was misappropriated by a character in 'The Regular Show' named Garrett Bobby Ferguson (GBF). The show depicts the adventures of two anthropomorphic animals, a bird named Mordechai and a raccoon named Rigby. GBF is depicted as a giant floating head that has long black hair and a black beard and is a master at a game called 'Broken Bonz.'

Mitchell is best known for his role in a 2007 documentary, 'The King of Kong: A Fistful of Quarters,' which chronicles another gamer's attempt to surpass his world record score in 'Donkey Kong.' In the movie, Mitchell has long black hair and a black beard and wears a black suit with an American flag tie.

The suit named Turner Broadcasting Corp. in addition to the Cartoon Network and included claims for invasion of privacy and misappropriation of likeness for a commercial purpose. Besides the similar hair and beard, the plaintiff cited 'certain expressions and call words which are unique to plaintiff's persona.'

Thompson said a party ordinarily could not raise a First Amendment defense on a motion to dismiss. But the judge explained that because the defense is apparent on the face of the complaint, and the episodes of 'The Regular Show' and 'The King of Kong' are incorporated into the complaint by reference, the court could consider the motion to dismiss without converting it to a motion for summary judgment.

Thompson found that the plaintiff established the elements of a right of publicity claim by demonstrating that the defendant appropriated his likeness, that the appropriation was without his consent, that the action was done for the defendant's use or benefit, and that the plaintiff was damaged by the action. However, the defendants asserted that the plaintiff's claim was barred by the First Amendment.

Conflicts between the First Amendment and a right of publicity claim are resolved by the transformative use test, which weighs whether the use of a plaintiff's likeness is merely a copy or imitation, or whether the original is altered with a new expression, meaning or message, Thompson said. Works that add something new are protected by the First Amendment, while those that contain a mere copy or imitation are not, she said. The GBF character is similar to Mitchell because both have long black hair and a beard, and because both held records in video games, Thompson said. What's more, both are 'portrayed as arrogant yet successful, beloved by fans, and willing to go to great lengths to maintain their titles,' the judge said.

Yet GBF appears as a non-human figure ' a giant floating head with no body from outer space ' and he holds the record for playing 'Broken Bonz,' while the plaintiff held the record for playing 'Donkey Kong,' Thompson said. While Mitchell is a world champion video game player, GBF is depicted as holding the record for the entire universe. While Mitchell questioned the honesty of a challenger to his record score, GBF begs his opponents to let him keep his record, Thompson said. And when GBF loses his title, the character literally explodes, unlike Mitchell, the judge said in granting the motion to dismiss.

'By exaggerating plaintiff's well-known traits to make the GBF character 'cartoonishly evil,' the defendants have added something new, transforming their appropriation of the plaintiff's likeness and making their television show a poor substitute for conventional depictions of plaintiff,' Thompson said.

Robert Ballard Jr. of Ballard & Dragan in Flemington, representing the plaintiff, and Jonathan Strauss and Christian Carbone of Loeb & Loeb in New York, representing the defendants, did not return calls for comment on the case.

Charles Toutant'is a Reporter for the'New Jersey Law Journal, an ALM sibling of'Entertainment Law & Finance.

A federal judge in Trenton has dismissed a suit filed against The Cartoon Network by a video gamer who was parodied on one of the network's programs.

The network admitted that a character in its program 'The Regular Show' is patterned after Billy Mitchell, who once held record high scores in 'Donkey Kong' and 'Pac-Man.' But the parody is entitled to First Amendment protection under the transformative use test because the character is not a literal representation of Mitchell, U.S. District Judge Anne Thompson of the District of New Jersey ruled in'Mitchell v. The Cartoon Network, Inc.

Mitchell's suit claimed that his likeness was misappropriated by a character in 'The Regular Show' named Garrett Bobby Ferguson (GBF). The show depicts the adventures of two anthropomorphic animals, a bird named Mordechai and a raccoon named Rigby. GBF is depicted as a giant floating head that has long black hair and a black beard and is a master at a game called 'Broken Bonz.'

Mitchell is best known for his role in a 2007 documentary, 'The King of Kong: A Fistful of Quarters,' which chronicles another gamer's attempt to surpass his world record score in 'Donkey Kong.' In the movie, Mitchell has long black hair and a black beard and wears a black suit with an American flag tie.

The suit named Turner Broadcasting Corp. in addition to the Cartoon Network and included claims for invasion of privacy and misappropriation of likeness for a commercial purpose. Besides the similar hair and beard, the plaintiff cited 'certain expressions and call words which are unique to plaintiff's persona.'

Thompson said a party ordinarily could not raise a First Amendment defense on a motion to dismiss. But the judge explained that because the defense is apparent on the face of the complaint, and the episodes of 'The Regular Show' and 'The King of Kong' are incorporated into the complaint by reference, the court could consider the motion to dismiss without converting it to a motion for summary judgment.

Thompson found that the plaintiff established the elements of a right of publicity claim by demonstrating that the defendant appropriated his likeness, that the appropriation was without his consent, that the action was done for the defendant's use or benefit, and that the plaintiff was damaged by the action. However, the defendants asserted that the plaintiff's claim was barred by the First Amendment.

Conflicts between the First Amendment and a right of publicity claim are resolved by the transformative use test, which weighs whether the use of a plaintiff's likeness is merely a copy or imitation, or whether the original is altered with a new expression, meaning or message, Thompson said. Works that add something new are protected by the First Amendment, while those that contain a mere copy or imitation are not, she said. The GBF character is similar to Mitchell because both have long black hair and a beard, and because both held records in video games, Thompson said. What's more, both are 'portrayed as arrogant yet successful, beloved by fans, and willing to go to great lengths to maintain their titles,' the judge said.

Yet GBF appears as a non-human figure ' a giant floating head with no body from outer space ' and he holds the record for playing 'Broken Bonz,' while the plaintiff held the record for playing 'Donkey Kong,' Thompson said. While Mitchell is a world champion video game player, GBF is depicted as holding the record for the entire universe. While Mitchell questioned the honesty of a challenger to his record score, GBF begs his opponents to let him keep his record, Thompson said. And when GBF loses his title, the character literally explodes, unlike Mitchell, the judge said in granting the motion to dismiss.

'By exaggerating plaintiff's well-known traits to make the GBF character 'cartoonishly evil,' the defendants have added something new, transforming their appropriation of the plaintiff's likeness and making their television show a poor substitute for conventional depictions of plaintiff,' Thompson said.

Robert Ballard Jr. of Ballard & Dragan in Flemington, representing the plaintiff, and Jonathan Strauss and Christian Carbone of Loeb & Loeb in New York, representing the defendants, did not return calls for comment on the case.

Charles Toutant'is a Reporter for the'New Jersey Law Journal, an ALM sibling of'Entertainment Law & Finance.