Face off

Do you want to be in a video game?

BioWare have just put out a casting call for eager faces that want to appear in their upcoming games. All you have to do it pitch up today at 16:00 (local time) in West Edmonton Mall Phase 1 with a photo ID (oh and you must have a head and I guess it must both be yours and attached to your body. Well they don’t actually specify this so I’m just speculating here).

Which of course brings me immediately to the question of just what it is that you might be signing up to here. I mean obviously all TN readers are hero material, there’s not an ork or undead amongst us – right. But what if that’s not BioWare’s take on things – what if a darn realistic image of you turns out to be a notorious mass rapist in game.

Don’t worry.

There’s a contract.

It’s called a “BioWare Performer's Agreement” (see point 11 in their FAQ – I love the way that they bookmark this even thought its only 4 lines below the actual link,, but I digress).

Which would be fascinating. If I could find a copy of the thing.

I’ve looked on the site and I’ve googled, but nope. All I can find is that single reference in the FAQ. Which given that I got the BioWare news letter at 03:14 on the day of the casting (given time differences that about 19hrs notice) is not a lot of time to try to extract a copy of them and get a legal opinion on it, especially given that this is a Friday.

Erm, BioWare, if you are listening, can you send me a copy or just post it up here. I’m sure we will all be interested.

Thus I assume that they simply expect people to sign up to a contract on the day – which does not strike me as particularly reasonable – after all if they can post the notice, they can post their Copyright & Trademark Information, Website Terms of Use Agreement, Store Policy and Privacy Policy! They can sure post the copy of a contract that might have long term and wide ranging consequences on its signatories – that’s you!

- what if I want to appear in another game?
- what if I want to use the image of me on my web site?
- etc

And it’s not as if this is new ground with no cause for concern, faces of actual people have been turning up in 2D and 3D worlds (including FPS skins etc) for a very long time. What's more Prof Beard has written on this subject in a number of pieces, most famously:  Clones Zones and Twilight Zones (Beard. J. J., (2001), Clones, Bones and Twilight Zones: Protecting the digital persona of the quick, the dead and the imaginary, Berkeley Technology Law Journal, 16:3), see also Brown’s student note (thx for this one Greg): Genetically Enhanced Arachnids (Brown, J. R., (2003), Genetically Enhanced Arachnids and Digitally Altered Advertisements: The Making of Spider-Man, Virginia Journal of Law and Technology).

The point being that when we get into rights associated with digital replications of our physical features we are into some of the less charted legal waters, so just what is it that BioWare are asking people to sign up to????

And lastly just imagine coming up to ‘yourself’ mid game and having to kill you over and over again ,,,which brings me on to whether property rights really should be applied to identity in the analogue and / or digital worlds, and while I’m about it, what about those Rights of Publicity – OK, OK, OK I won’t beat _that_ drum _this_ time.

Comments

[greglas]

1.

I've got a new article out on authorship and branding that touches on rights of publicity. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=656138

I might try to blog it and add a virtual worlds spin when I get a chance.

Clearly, there is a potential RoP claim that will need to be dealt with if your real face is being included in the promotion of a video game. See, e.g, the $15 million coffee guy.

-- the thing that I wonder about, though, based on some things you've written, Ren, is if we buy the notion that RoP is a good thing (and generally speaking I don't), why not extend it to the avatar? I don't see that it would extend that far at the present moment, because the avatar doesn't resemble or evoke the controlling person/author any more than any other authorial creation does. (My article discusses this a bit.) Still, whether your avatar looks like you or not, it embodies your identity and investments, which is one of the theories used to justify RoP. A counter-argument, perhaps, is that the anonymity or identity play is a major reasons for the attraction of MMORPGs -- the lack of a tie to a real person is what, arguably, separates the avatar situation from a more standard electronic agent = self situation.

And if you thought RoP might apply to avatars, I wonder how it would fit in, btw, to the Marvel/NCSoft stuff? :-)

[ren]

2.

>I've got a new article out on authorship and branding that touches on rights of publicity.

mmm, it’s fresh.

Printing as I type (though at 73 pages!! I might need to run up an add paper),,,

> the thing that I wonder about, though, based on some things you've written, Ren, is if we buy the notion that RoP is a good thing (and generally speaking I don't)

I don’t either.

I think that commoditisation of identity is generally a bad thing, currently I believe that identity should sit outside property law and that really we need novel laws to deal with Avatars (less so for other virtual objects).

Though while I don’t like the law it still seems like should have a hold in the kind of cases that we talk about here but seldom if ever seems to be discussed.

> why not extend it to the avatar? I don't see that it would extend that far at the present moment, because the avatar doesn't resemble or evoke the controlling person/author any more than any other authorial creation does.

OK, these are state laws so one has to look at the detail and case law behind each one, though in the 9th Circuit I thought that physical resemblance had been shown not to be critical in Motschenbacher vs Reynolds (Motschenbacher v. R.J. Reynolds Tobacco Company, 498 F.2d 821 (9th Cir. 1974)).

>Still, whether your avatar looks like you or not, it embodies your identity and investments, which is one of the theories used to justify RoP.

Yup, it’s the notion of ‘commercial persona’ that seems to be the motivating legal fiction. This seems highly applicable to avatars in certain circumstances. A bigger issue than physical resemblance I think is being able to argue that one has a legitimate commercial identity within the space of an MMO when the EULA probably forbids this, though I don’t think that this is insurmountable. The other tests that I’ve seen look like they are satisfied in cases where we grant the commercial bit. I think I went through each of them in an AoIR paper the other year.

>A counter-argument, perhaps, is that the anonymity or identity play is a major reasons for the attraction of MMORPGs -- the lack of a tie to a real person is what, arguably, separates the avatar situation from a more standard electronic agent = self situation.

Hmm, that’s a sensible argument for maintaining the magic circle but if its trumped by something in the legal tool kit then many of mine, Richard’s and other peoples nightmares start to come true.

>And if you thought RoP might apply to avatars, I wonder how it would fit in, btw, to the Marvel/NCSoft stuff? :-)

Blimey, how did you know that I was now large, muscular and green!

[Noel]

3.

People who show up for the casting call will need to sign a release to get their picture taken but they won't have to sign the performer's agreement unless they're actually selected to appear in a game. This is just asking that people sign up to allow BioWare to take their picture to store in a file, nothing more.

Point 11 in the FAQ says that you can pull out later if you get cold feet or decide that you don't like the terms of the agreement. Every modeling/talent casting call has these kinds of releases, so I don't expect the BioWare ones to be anything out of the ordinary.

Once you've signed the agreement and had yourself scanned, you don't really have a say in how your likeness is used. All you can do is try to look as heroic as you can and hope you don't end up like the producer of Baldur's Gate II who was immortalized as Neb the Child-killer (when you killed him you got an item that looked like Ben's severed head)

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