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LOS ANGELES-In a ruling with major implications for those who wish to limit the use of their name and likeness in video games, a California appellate court has upheld the right of three video game companies to create a character with traits much like a real-life singer’s. The California 2d District Court of Appeal recently found that three video game companies had a First Amendment right to create a character who shared certain traits with Kieren Kirby, or “Lady Miss Kier,” the former lead singer of the 1990s funk band Deee-Lite. Kirby v. Sega of America, No. B183820 (Calif. 2d Ct. App.). In ruling against Kirby, the panel relied on a similarity test in prior California Supreme Court cases. 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. A ‘square split’ Courtney Palko, a lawyer at Los Angeles-based Blecher & Collins who represents Kirby, said she sought publication of the ruling to draw attention to the case. “It’s an important decision,” she said, noting that the case further limits right-of-publicity claims in California. Right of publicity is the right to prevent unauthorized use of one’s name or likeness by a third party for commercial benefit. “Now that there’s this Missouri case out there, I think there is a square split [in the courts],” Palko said. 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, which was published on Oct. 25, the appellate panel granted summary judgment after finding too many dissimilarities. Tod Gamlen, a partner in the Palo Alto, Calif., office of Baker & McKenzie who represents Sega and the other defendants, said that the case is the first in California to apply First Amendment rules to right-of-publicity claims against video games. He also said the case is consistent with a prior California Supreme Court ruling in Winter v. DC Comics, 30 Cal. 4th 881 (2003), which applied the “transformative” test in finding that two half-worm, half-human creatures in a comic book had been substantially transformed from looking like musicians Johnny and Edgar Winters. That test first came about in Comedy III Productions v. Saderup, 25 Cal. 4th 387 (2001). “In California, under Kirby v. Sega and earlier cases, the question is whether the defendant’s use is transformative,” said Stephen Barnett, a professor of law emeritus at the University of California, Berkeley School of Law. “In Missouri, the question is whether it’s between a commercial use and an expressive use-which one is predominant,” Barnett said. In Missouri, Twist appealed to the Missouri Supreme Court after losing a judgment in a case filed against Todd McFarlane Productions Inc. In 2003, the Supreme Court reversed, arguing that McFarlane had used Twist’s name and likeness primarily to sell its comic books, not for creative expression. Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003). In its ruling, the Missouri Supreme Court relied on the predominant-use test, which weighs the intent to commercialize something against a person’s First Amendment right of expression. “A case could be made that he intended to use this for commercial benefit of his product,” said Twist’s lawyer, Bob Blitz, a partner at Clayton, Mo.-based Blitz Bardgett & Deutsch, of McFarlane. In the second trial, a jury awarded Twist $15 million, which was upheld in June by the Missouri Court of Appeals for the Eastern District. Michael Kahn, a lawyer in the St. Louis office of Kansas City, Mo.-based Blackwell Sanders Peper Martin who represents McFarlane, said he has applied to appeal the case to the Missouri Supreme Court. If that fails, he said he would petition the U.S. Supreme Court, particularly given varying case law. “It creates a very profound First Amendment issue for most forms of entertainment and media,” he said.

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