The Similarities Between Kirby And Ullala

In each of the cases discussed in this report, the court is presented the challenge of deciding whether to protect a celebrityʻs right to publicity or to protect and artistʻs constitutional right to free speech. These protections are at conflict because the First amendment encourages the unencumbered exchange of ideas and public discourse, which celebrities are an inextricable part of. Yet, the right to publicity entitles a celebrity to profit from their reputation and prevent others from doing so. Despite the similarities present between these cases, the evidence presented as well as the circumstances surrounding each case distinguish them from each other. For example, the first two cases involve the argument of a videogame companyʻs use of

musical artistsʻ likeness in their games. Though it is the way in which the videogames use these likenesses and the circumstances surrounding them that leads these cases to different outcomes. In the second pair of cases examined, the appropriation of celebritiesʻ likeness in comic books is debated, and the third pair of cases involve the portrayal of celebrities in film. Regardless of the overall similarities of these cases, their distinctions are found in the mechanisms applied to determine each case as well as the evidence presented.
In the Kirby v.

Sega of America case, singer Keirin Kirby claimed that the video game distribution company Sega appropriated her persona in their video game Space Channel 5. Kirby argued that Sega created the main character of the video game, Ulala, to resemble her specific fashion choices, dance moves, and personality for their economic gain. She also asserted that because she did not authorize Sega to appropriate her persona, they violated her right to publicity. The case lists the notable similarities between Kirby and the Ulala character, including their physical appearance, and even the phrases they use (144 Cal. App. 4th pg. 48). Another similarity mentioned is that the video game characterʻs name is similar to the phrase “ooh la la,” which Kirby argued is her distinctive phrase that she uses to introduce herself in one of her music videos and is a part of three of her songs (144 Cal. App. 4th pg. 47). Despite these numerous similarities, the court decided that they were inadequate in demonstrating an infringement of Kirbyʻs right of publicity under the “transformative test.” This test is applied in cases involving the right of publicity to determine if an artistʻs depiction incorporates some elements of a celebrityʻs identity but adds significant changes to it for originality (144 Cal. App. 4th pg. 47). If the work is not significantly original and is a replication of the celebrityʻs identity, then it does not receive First amendment

protection.
In their assessment of the videogame character Ulala, the court found that the differences between Ulala and Kirby were significant enough that Kirbyʻs fans would not associate her with Ulala. The case states that both have dissimilar body structures and that Ulala was inspired by Japanese anime, an art form Kirby does not represent (144 Cal. App. 4th pg. 51). Another notable difference the court mentioned is that Ulala wears one specific costume and hairstyle, whereas Kirby herself admitted that she prefers to vary her clothing and appearance (144 Cal. App. 4th pg. 51). Additionally, Ulala is a news reporter set in space, unlike Kirby, and Ulalaʻs dance moves differ significantly from Kibryʻs because they were choreographed by a Japanese dancer who was not familiar with Kirby (144 Cal. App. 4th pg. 51). The video game also did not feature any of Kirbyʻs songs. Due to these differences, the court decided that the video game character Ulala would not interfere with Kirbyʻs ability to profit off of her reputation and that Sega should receive First amendment protection.
By contrast, a case involving the band No Doubt and the video game company Activision Publishing demonstrates the exploitation of the band membersʻ exact identity. Initially, No Doubt entered into a licensing agreement with Activision that allowed them to use the identities of the band members in their video game Band Hero (192 Cal. App. 4th pg. 1024). The case states that the band did a photoshoot with Activision to create realistic images of the band members for the video game (192 Cal. App. 4th pg. 1018). In addition, the band approved these images and allowed Activision to use three of their songs ((192 Cal. App. 4th pg. 1024). Although, No Doubt later found out that Activision added other features to their video game characters that they did not agree to.
These features allowed players to use the band member characters to play any of the songs available in the game (192 Cal.

App. 4th pg. 1018). Another feature allowed players to manipulate the voices of the band members to sing in the voice of the opposite sex (192 Cal. App. 4th pg. 1018). Lastly, players had the option to make the band members perform individually or with members of other bands that were also featured in the game (192 Cal. App. 4th pg. 1018). No Doubt did not agree to Activisionʻs use of their identities for any of these purposes. In applying the transformative test, the court found that Activisionʻs depictions of the band members were obviously imitative and should not be protected by the First

Amendment.
Activision argued that their depiction of the band members should receive protection because they presented the No Doubt characters in creative settings and make them perform songs that No Doubt themselves said they would never perform (192 Cal. App. 4th pg. 1018).