The right of publicity in virtual reality

Imagine that you have designed a virtual avatar to represent your presence in a virtual environment and it happens that the avatar resembles the look and sound of a famous person. In this case, could you be required to pay the famous individual for use of their image? Could you be required to pay back any profits that you may have made from use of the avatar? And could you be required to pay attorneys fees and costs to the other party if hauled into court to defend your use of the virtual avatar? It could turn out that based on a statute that exists in many jurisdictions; you could be found guilty of a civil offense and subject to all of the above. The ‘‘right of publicity’’ prevents the unauthorized commercial use of an individual’s name, likeness, or other recognizable aspect of one’s persona (Beard 2001). It gives an individual the exclusive right to license the use of their identity for commercial promotion. Commercial exploitation can include the use of an individual’s identity in advertising (including advertising in virtual reality), or services, and has been extended to a whole spectrum of commercial uses. While in some jurisdictions, the right of publicity is restricted to an individual’s name and likeness; the trend is for courts to recognize more broadly the many ways a person can be recognized. Thus, the right of publicity can be applied to names, identifying phrases such as nicknames or catchphrases, voice, style of speaking, and the person’s visual likeness broadly defined. An example of a case dealing with a voice ‘‘sound-alike’’ was Midler v. Ford Motor Co. (1988). In this case a Federal Court of Appeals in the USA found that a sound-alike voice of Bette Midler when used in a commercial without her permission was a violation of the simger’s right of publicity. The scope of the right of publicity may vary, depending on the particular jurisdiction considering it. For example, in the USA, not all states have directly adopted a right of publicity law, although in the states that have not, a similar right may exist in the states privacy laws. But the right of publicity does exist in one form or another in most states within the USA; and in Canada, Australia, Hong Kong, and members of the European Union. Further, given that many virtual environments with corresponding virtual avatars can be accessed by the internet, it is possible to be subjected to the right of publicity law within a particular country, even though the person who designed the virtual avatar may reside in a country which has no right of publicity claim. Thus far, the right of publicity has been used to protect the persona of well-known people and not the design of ‘‘famous avatars’’ (such as Max Headroom). However, in a case decided in the USA, White v. Samsung Electronics America, Inc. (1992) a robot designed to look like Vanna White (of the ‘‘Wheel of Fortune’’ fame) and used to advertise a product, was found to be a sufficient likeness to Vanna White to support her right of publicity claim. Given that the White decision involved a nonhuman character in the analysis, the court’s reasoning in White begs the question; could it be possible that some day the right of publicity doctrine could be expanded to protect a virtual avatar should the avatar gain fame? Based on the right of publicity law, when the virtual world is designed for commercial purposes, a virtual W. Barfield (&) 107 Cameron Glen, Chapel Hill, North Carolina 27516, USA e-mail: Jbar5377@aol.com