Miller v. Easy Day Studios Pty Ltd, 2021 WL 4209205, No.
20cv02187-LAB-DEB (S.D. Cal. Sept. 16, 2021)
Gordon v. Drape did mess things up in the Ninth
Circuit, but core Rogers cases are still simple. Defendants paid Zachary
Miller, a professional skateboarder, to assist in developing a video game,
called Skater XL. “Miller believed that the extent of his agreement with
Defendants was to model various clothing outfits, which would then be captured
by a technique called photogrammetry and applied to a generic character in the
video game. Miller alleges that he didn’t consent to the use of his image or
likeness in the game, yet one of the characters in it appears to be his exact
replica.” He sued for violations of the Lanham Act and state-law claims.
Miller alleged that defendants told him that the motion
capture was for a “generic” character in the video game that wouldn’t resemble
Miller or have any identifiable characteristics, and assured him that the video
game “won’t have your name anywhere or anything if you’re worried about that.” He
was paid $250.
Skater XL allows users to “simulate skateboarding tricks and
techniques in a realistic skateboarding environment.” Users can select from
five different skater characters, including four professional skateboarders and
a nameless “generic” skater avatar. “The first four characters are explicitly
identified by name and image in the game, while the latter generic character
has no name or identifying characteristics. This generic character can be
customized according to user preference, including customizing its gender,
race, hair color, clothing, and accessories.” However, Miller alleged that the
generic avatar was an “exact copy” of him, and easily identifiable as him.
False endorsement: Rogers applies; realism is
artistically relevant. “[T]here can be no doubt that including the likeness of
a real-life skateboarder in a video game seeking to simulate real-world
skateboarders and skateboarding environments obviously has at least some
artistic relevance to the work.”
The depiction was not explicitly misleading as to
endorsement, which is what is required by the second prong of the test. The
court here states it nicely:
Miller argues that Defendants’
actions were explicitly misleading because at least two individuals contacted
him after recognizing his character in the video game. But this misses the
point. The issue here isn’t whether other consumers could simply recognize
Miller’s likeness in the game, but rather whether they would be misled into
believing his association with the game means he is somehow endorsing it.
Although the issue of customer confusion is factual in nature, it’s simply not
plausible that the inclusion of the only anonymous skateboarder in the game,
among four other explicitly identified skateboarders, would convince consumers
that Miller endorsed their video game.
As in the previous Brown video game case, “[t]he
anonymous character’s mere presence in Skater XL doesn’t equate to “an explicit
attempt to convince consumers that [Plaintiff] endorsed the game[ ].”
False advertising: Miller failed to plead statutory
standing. He didn’t compete with defendants. He didn’t allege that he lost
endorsement agreements or suffered any reputational injury, other than in
conclusory fashion. Thus, he failed to plead proximate causation. [Compare
The court declined to exercise supplemental jurisdiction
over the state claims.
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