In the mid-80's, Keirin Kirby (better known to us video game lawyers of the "?80s as "Lady Kier") was the lead singer of a band called "Deee-Lite". But wait"?that's not all! Kirby was more than just a retro-funk-dance pretty face she was also a dancer, choreographer and fashion designer. And she believes she has created a distinctive look and character.
Enter Sega.
In 1999 Sega released Space Channel 5, a futuristic space game which featured a character called "Ulala" who dressed in an outfit similar to the outfits Kirby liked to wear (i.e. mini-skirt, tank top with a number on the front, pink hair in pigtails, etc.). THQ later released a Gameboy Advance version of the game.
Kirby sued, claiming that the game misappropriated her likeness and identity. The lower court dismissed the lawsuit (through summary judgment). Kirby appealed but lost.
The courts found there were similarities between the appearances of Kirby and Ulala, so Kirby at least had an argument that her likeness and identity were misappropriated. However, the courts also found that the First Amendment (freedom of expression) provided a complete defence to Kirby's claims because Ulala was not a literal depiction of Kirby"?there were sufficient differences between Kirby and Ulala.
At one time or another, many of you have probably considered basing a video game character on one of the many buff, distinctive and charismatic video game lawyers at Davis. And you probably wondered how to do it.
Well here's how. According to the California Court of Appeal, all you need to do is ensure that your work contains "something new, with a further purpose or different character, altering the first with new expression, meaning, or message."
The test in Canada will likely be different, of course, but there doesn't appear to be any video game case law on point yet. But heck, we're willing to make some, so here's a link to our photos http://www.shorl.com/divofrakodefri
Kirby v. Sega is here http://www.shorl.com/distokimynagu
