On April 14, 2020, Variety reported that Selena Gomez has filed a lawsuit for $10 million against a mobile game company (Guangzhou Feidong Software, and MutantBox Interactive Limited) for stealing her likeness for use in the game Clothes Forever – Styling Game. The game allows users to buy “diamonds”, a kind of in app currency for $.99 up to $99.99. The image in question is nearly identical to the photo used on the cover of a magazine, just mirrored. The report by Variety goes into a little more detail of the lawsuit, but I am writing to explain why a right of publicity lawsuit instead of a copyright lawsuit.
Why use Right of Publicity as the cause of action?
The right of publicity is a state law that protects against the unauthorized use of an individual’s name, likeness, or other recognizable aspect’s of one’s persona. The individual has an exclusive right to license their identity for commercial promotion. In some states, this law falls under the right of privacy, and some states may protect this under unfair competition.
In the immediate case, Selena Gomez’s likeness was used by a game company to promote their game without her permission. This promoting by the game company was also for commercial purposes, so people download the game and buy the “diamonds” via microtransactions.
So why can’t she file a lawsuit under copyright law?
Copyright law protects a work of art, whether that is a picture, text (such as a book), painting, software, and more. In this case, The artwork would be a derivative work based off the photo, as there are so many similarities from the original photo. The owner of the copyright might be able to bring forth a copyright lawsuit. The owner is most likely either the photographer, or the magazine, but that would depend on the contract or contracts that were signed by the parties in question. Usually, but not always, the subject of the photo is not the owner of the photo. There may be a copyright cause of action, but not one that may be filed by Selena Gomez.