This month there have been two incidents within the video game industry that have gained a lot of mainstream media attention, both relating to the use of real people and their likenesses within games. The first, concerned Lindsay Lohan, and the other focused on ex-Panama dictator Manual Noriega. They are not the first of a series of lawsuits brought against gaming firms on account of representing likenesses in games, but they are part of a growing trend. Another major – and successful – lawsuit involving American football and basketball players who had been used within EA Sports titles without their consent and payment resulted in EA giving out $40 million in damages. The money generated by these lawsuits, when successful, is huge, so I wonder whether there is any point taking risks, and what use there is of ever using real people within video games.
In America people have a right to publicity, which means that they can decide how they are featured within media forms, such as video games. In reality, this usually means that a cash sum is given to the people and then they allow their likeness to be used in a certain game or other medium. In the UK the law with regards to privacy of personalities means that similar lawsuits have also been brought, but the majority of topical arguments are taking place in the United States. In the UK last year, Lady Gaga forced British developer Mind Candy to remove a likeness of her from its game Moshi Monsters, so indeed the incidents are not confined to America.
In Lohan’s case, her lawyers are arguing that Grand Theft Auto V uses her likeness without her permission in the character Lacey Jonas. The character bears some similarities to Lohan, not only in name, according to her, but also in how the character is represented. In the game, the players help protect Jonas from the paparazzi, with whom Lohan herself has had several run ins with in the past. Jonas also resides in a location that is the same as the West Hollywood’s Chateau Marmont hotel, where Lohan lived for a length of time, her lawyers allege. I will not comment on the likelihood of success in such a lawsuit, but I will comment on the situation it is attacking.
Grand Theft Auto is a series that is characterised by being a satire of modern life. In this case, it is a parody of Californian life, whereas Grand Theft Auto IV was deconstructing life in a city similar to New York and the American Dream in general, not only in order to provide amusement, but also to teach. A satire is, at its most basic level, funny. However, a satire is also designed to help people viewing it to understand the faults within the system or situation that it is taking apart, so that they can then go on to question themselves whether they need refining in real life. A satire is more than a parody because a satire hopes to educate, instead of simply providing laughs. You can have a parody of science fiction films, but you cannot as easily have a satire of them because a satire forces questioning of the thing that it is poking fun at too. The lack of reality within science fiction means that satire is more difficult there. We all inherently understand reality and its machinations, so a satire works best in that, whereas a parody better suited for things that we experience through media. When we use satire with reality in a game then, is not the most impactful, the most relatable, satire one that uses as much of reality as possible? By using someone as close as possible to Lohan we home in on the part of society that we are attacking, because we, the pop-culture-saturated populace that we are, are mostly familiar with Lohan, and so are more likely to see what we are arguing about the stupidity of when she, with her story, are involved and able to be called to mind.
At the same time, the question is then of whether Rockstar should have asked Lohan to use her likeness. Rockstar has enough money to pay for it if it came to that, but perhaps they felt they did not need to, or maybe they were not using Lohan at all. While Lohan is one of the best examples of people who have attacked the paparazzi she is not the only one in recent memory, with Justin Bieber another notable example. Lohan is also not the only person ever to have resided in the Chateau Marmont hotel. The problem that she is capitalising on how the character is seemingly based on her every aspect of person, closely enough that she can identify herself within it very easily. This is perhaps where Rockstar slips up, or maybe not. They have defence in terms of distance, as they can saythat there are plenty of similar people to Lohan that they could have used, and, perhaps they will argue they did. Coincidences can occur. The real question we should consider how similar the character needed to be for Rockstar to be sure that we would get the reference, and whether it is a reference, or simply an allusion.
Manuel Noriega was the dictator in charge of the state of Panama from 1983 to 1989. He is currently serving a prison sentence in Panama following his release from a french prison for war crimes. His lawsuit centres on his appearance in Call of Duty: Black Ops II, in which the players encounter him several times in their hunt for the main villain, Menendez. The representation of him helps hide Menendez from United States authorities, allowing him to fake his own death so that he can get revenge on the main characters later. Unlike in Lohan’s case, the character within Black ops II is unmistakably Noriega. Not only does he share the same name as him, they also look the same, and have similar roles, that is to say a penchant for guerilla fighting. There is of course the problem of Noriega’s consent, or there would be, but he is not a United States citizen, so he does not have the right of publicity that I mentioned at the beginning of the article. As a result the lawsuit is unlikely to be a success. By using Noriega the main aim of Treyarch is to blur the lines between reality and fiction, as people playing the game should, as with Lohan, have an idea of who Noriega is, and that it is possible that he could have acted similarly in real life. They can feel as though what they are playing is indeed close to history, and this makes the game feel more authentic and, to some, enjoyable in consequence.
Another interesting character within Black Ops II is General Petraeus, who is on board the large American aircraft carrier featured within the later game. This is the same general Petraeus who has retired from an active role within the CIA following the reveal of his liasons with various women, but the game was already far into the production stages when this news came out, too far to remove him at least. In the case of Petraeus, he had consented to his likeness being used, but now it seems like a bad move by Treyarch. In 2025 it I do not think that Petraeus will be in charge of any aircraft carriers, or even on board them, and the suggestion that this could be predicted, as evidenced by Black Ops II’s use of it, strikes me as folly. We cannot guarantee the future, only the present, so what was the point of using someone real, like Petraeus, over another imagined character? For Petraeus and Activision, the gain is publicity and also, for Petraeus, a vote of confidence from Activision in his continued success in the intelligence services. A vote of confidence that did not and, more importantly, could not have foreseen what was to come out about his private life. The entire credibility of Petraeus was lost and with it, the game must take some loss too. Instead of being a possible future, even if an unlikely one, Black Ops II suddenly becomes an impossible one. The story is harder to appreciate as a result.
There are plenty of other cases of using real people and their likenesses in video games, but what is the point of having possibilities to lawsuits open in the first place? In the case of GTA V it was to establish some real world example that could easily be recalled to enhance the satire, and so it was useful, because it made the point more poignant. In the case of Black Ops II Noriega’s use was to make it more evidently historical by using a real personality whose existance is known, but really was it necessary? A real conflict and historical period is useful and understood in a game, but a character does not always have the same effect. I dislike historical fiction featuring real people precisely because I instantly know that what is being said by men who I know to be real is not in fact that case, exactly what they said, or even remotely related. With a war you have a less certain knowledge, a greater capacity to believe that there are events that may have been missed out. With Petraeus’ use Activision embarrassed themselves and lost the credibility I had in the game’s future-based plotline. Activision could have not predicted Petraeus’ downfall, so why did they have to take the risk?
Another situation involving using likenesses in games, sports, has, with EA resulted in $40 million being given out in damages for players who had not been given the choice regarding their inclusion. EA should have asked, but the point is that with sports games the decision to include real people and teams seems far more logical than with games, especially those with major parts of them set in the future. Music games are the other obvious choices for when including real people, with their consent, is a necessity at times. Racing games, though technically sports games, also should ask when using real people. Racing games get permission for cars, so why should other sports games not need it for people, other vehicles for success in their own games?
To conclude, while it may help make the historical relevance of a game seem stronger, in general I would say games should not use real people, or their likenesses, without a good reason, as lawsuits have the ability to destroy whole studios with the amount of money they can demand and, often, attain. Satirical games can use real situations to enhance the laughs they can generate, and the poignancy of their arguments, and sports games can use real people and teams so as to appeal to their fans, but beyond them the use of real people in games seems far too risky. Using people in games set in the future is an especially poor idea, as nobody can predict what will happen to the people before the game takes place and this can seriously hamper the dramatic nature of your game when it becomes fraught with unbelievable instances in the worst cases. It just isn’t worth the trouble. As a studio, you want to make good games, not fight lawsuits, or have them suck your budgets dry. A good game doesn’t need real people, and it certainly should not have to rely upon them.
What do you think about using real people in games? Is it a good idea, does it enhance your game, or would you prefer your games to be entirely fictional? Let me know in the comments.