It often happens that computer game characters look surprisingly similar, for example, to your favorite football player or actor. What are the backgrounds behind such procedures? In today's post, we'll discuss the regulations surrounding the use of real-life images in computer games.
First, we should begin by explaining what an image is. The PWN Polish Dictionary provides assistance, explaining that an image is: "someone's likeness in a drawing, painting, photograph, etc." Courts adopt a similar understanding of this concept. The word image likely evokes associations with a person's face; however, this is a significant narrowing of the concept. It's easiest to understand an image as the characteristic features that largely distinguish a person from others. This includes not only physical features but also the tone of someone's voice, characteristic gestures, and so on.
Next, we must address what is undoubtedly the most important issue in this topic: consent to use one's image, or the lack thereof. There is no specific form of consent. However, the condition of no doubt must be met when granting consent. Of course, the complexity of such consent increases in direct proportion to the value of the individual's image. For example, world-class celebrities share their images through paid and extensive contracts.
What if we don't connect with the person whose image we want to use in our game? The consequences can be various, including:
- Legal dispute resulting from image infringement (e.g. the image of a given person could have been used to create a character who commits crimes in the game; which creates a certain distorted image of the person who, as we have indicated, did not consent to such conduct);
- Problems on the part of the game's producer. Image disputes can result in far-reaching business consequences, such as the need to change a character's image, which may be negatively received by potential buyers.
An interesting example of this type of case is the infringement of the image of football player Edgar Davids. Riot Games, a well-known computer game developer, used the footballer's image to produce a so-called "skin" for the character, i.e., a change in appearance for a fee. The Amsterdam court concluded that the appearance of the character named Lucian met the image designations of a footballer, i.e., his specific hairstyle and shaped glasses. Riot Games was ordered to pay damages.
An example of a legal and extremely efficiently conducted promotional campaign was the use of the image of the famous actor Keanu Reeves in the production of the Polish game producer CD Projekt Red, i.e. in Cyberpunk 2077 (the character of Johnny Silverhand).
How does the use of an image work in Poland? By way of exception, pursuant to Article 81, Section 2 of the Act of 4 February 1994 on Copyright and Related Rights, permission is not required for the dissemination of an image of a well-known person if the image was created in connection with the performance of public functions, particularly political, social, or professional ones. Of course, the provision is ambiguous, as each such use must consider the context in which the image will be used. Protection of the image of persons holding public office varies depending on the country and its legal regulations. In Poland, perhaps the most glaring example would be the use of the image of the President of the Republic of Poland in a game in which the President would perform actions derogatory to his position, for example, lending his image to a character whose goal is to eliminate other well-known politicians. Such action would also meet the criteria for insulting the President of the Republic of Poland, which is regulated by Article 135, Section 2 of the Act of 6 June 1997 – the Penal Code.
In summary, the legal use of a person's image in a computer game requires, above all, the consent of the person whose image we intend to use, as well as verification of how the person will be portrayed and what the character using the image will represent. Drafting an agreement that provides consent to the use of an image is best left to professionals. Remember that inspiration from a person's image is permitted, but the line between inspiration and use of someone's image is often extremely thin and is subject to court discretion.
This alert is for informational purposes only and does not constitute legal advice.
author:
