Creating an App based around a celebrity

[jtommy]

What is the name of your state (only U.S. law)?

I am planning on creating a Flappy Bird type of iOS app based around a celebrity (similar to the Flying Cyrus miley cyrus version). All artwork is original, but the main character in the game would be depicting a celebrity. Is this legal to do? Also, can I include the Celebrity name in the name of the app itself? I will be making money from the app.

 

[quincy]

What is the name of your state (only U.S. law)?

I am planning on creating a Flappy Bird type of iOS app based around a celebrity (similar to the Flying Cyrus miley cyrus version). All artwork is original, but the main character in the game would be depicting a celebrity. Is this legal to do? Also, can I include the Celebrity name in the name of the app itself? I will be making money from the app.

You need the express written permission of any celebrity to use their name or image in a commercial venture.

 

[jtommy]

So you wouldn't to be able to consider it a parody?

 

[quincy]

So you wouldn't to be able to consider it a parody?

It could be considered a parody, I suppose. But if the celebrity does not view it that way, you have a potentially extremely costly lawsuit to defend against using parody as a defense.

What U.S. state are you in, jtommy?

 

[jtommy]

Ohio.

I would assume they would issue a warning to take the app down before filing a suit?

 

[quincy]

Ohio.

I would assume they would issue a warning to take the app down before filing a suit?

There is no legal obligation that a warning be issued before a suit is filed, so it can be dangerous to make assumptions.

For publicity rights laws, you can visit the following site, which also has links to recent cases heard and decisions made: http://www.law.cornell.edu/wex/publicity.

I recommend you review your app plans with an attorney in Ohio, if you are still thinking that capitalizing off the name or image of any celebrity without their prior authorization is a good idea.

 

[jtommy]

So would the app Flying Cyrus (currently number 1) be considered illegal? Thx!

 

[quincy]

So would the app Flying Cyrus (currently number 1) be considered illegal? Thx!

From my understanding, there has been no licensing of Miley's name or image so it is entirely possible that the Flying Cyrus app will do well until the Cyrus camp sues. Then it is highly likely that Miley will have the chance to collect all profits to that point generated.

As I said earlier, it is a violation of publicity rights to capitalize off the name or likeness of another. There is a fair use defense available, but it is up to a court to decide if a use is fair or not. Because of the commercial nature, a court may not see the app as a parody but an infringement on Miley Cyrus' rights.

 

[FlyingRon]

Parody/review applies to copyright fair use NOT exploiting celebrity to right to fame.

 

[quincy]

Parody/review applies to copyright fair use NOT exploiting celebrity to right to fame.

Parody can be used as a defense in copyright suits, trademark suits, defamation suits, publicity rights claims. It is a "constitutional," First Amendment, free speech defense against actions filed.

I wanted to add to my earlier post some information on publicity rights laws. Although the following is a link to a 2008 article, and the laws on publicity rights have been strengthened in many states since this was written, the authors Lawrence E. Heller and Shyla R. Barash provide good information on publicity rights and the damages that can be awarded in these lawsuits. http://www.lacba.org/Files/LAL/Vol31No3/2484.pdf