We have already written about the conditions under which the likeness of real-life people can be used in a game. But what if a game developer wants to use the likeness of a deceased person, or make an avatar look like a deceased person, e.g. a dead celebrity (aka “deleb”) or historical figure? After all, obtaining the person’s consent is impossible. So can the likeness of a dead person be used freely? In this article, we point out what rules a game developer should follow to ensure they are legally on safe ground.

The likeness of natural persons is protected on various grounds. In the Polish legal system, it is protected first of all under the Copyright Act, but also under the Civil Code as a personal rights. What does this mean for video game developers?

Interest in the game development industry is not diminishing. The upward trend has been consistent for several years, and 2021 is sure to bring a further increase. Forecasts indicate that in 2023 the value of the game market will exceed USD 200 billion.

The Warsaw Stock Exchange has strengthened its position as the world leader in the number of listed companies from the game development industry, even ahead of the stock exchanges in Japan and South Korea. The game market is becoming an increasingly promising area for investors, which can be seen in both the number and value of transactions. The segments of mobile games, distribution under a subscription model, and cloud gaming are gaining. At the same time, with so many titles available on the market, game marketing becomes more difficult and skilful community-building around a specific title becomes vital.

Recognising the importance of the game industry, last year we published the report “Law for game development,” which deals with specific legal issues in the production and publication of games. However, new legal challenges are emerging that must be faced by all stakeholders in the broader game industry. Therefore, we are starting another series of publications in which we will touch upon, among other topics, intellectual property law, labour law, personal data, and less-obvious aspects of criminal or regulatory law. We will also devote a lot of space to commercial issues that can be useful for game developers and investors alike.

Sometimes, a character in a game evokes an association with a real person. This similarity may be intentional or accidental. To ensure they are on solid legal ground, game developers should obtain the consent of the actual person to use his or her image. Failure to do so can result in severe consequences. In this text, we will discuss the rules for using likenesses of real, living people.

What is a likeness?

A person’s likeness refers to someone’s image, recorded for example in a drawing, painting or photograph, as well as the way a person is perceived and portrayed. Contrary to popular belief, likeness does not refer only to an image of a person’s face. It encompasses a range of personal characteristics, including natural features (e.g. eye shape), elements of characterisation or clothing (e.g. glasses, hairstyle, makeup, accessories), and even voice, deportment, behaviour, gestures or characteristic sayings. Thus, the likeness of a person is constructed of his or her recognisable features, by which we distinguish this person from others. Do you recognise the people pictured below? Just in case, the answer is given in the footnote¹.

Sometimes a video game’s title is one of the game development company’s most important assets. Properly selected, secured and promoted, it may constitute a valuable source of income for a long time. Therefore, at an early stage of work on the game, it is worth making an appropriate application to the register, bearing in mind that in the case of trademarks, the principle of “first come, first served” applies. A well-thought-out strategy for selecting and registering a video game title can also save a lot of nerves and money after the game is launched on the market.

Trademark clearance: How to check if a game title is registrable and can be used safely

Trademark clearance should precede not only an application for registration of a game title as a trademark, but indeed the very choice of the intended title (even if the developer ultimately decides not to register it). Trademark clearance is research to determine whether the same or a similar title has already been registered as a trademark or is being used by an entity from the same or a similar sector for identical or similar goods or services. This research is usually carried out using professional trademark databases.