Video game skates away from liability to pro skateboarder

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 trademark claims!]

The court declined to exercise supplemental jurisdiction over the state claims.