This month, actress and singer Selena Gomez filed a lawsuit in California state court against the makers of a fashion smartphone game for allegedly using her name and likeness without permission.
According to the complaint, Gomez claims that the makers of the “Clothes Forever – Styling Game” app, which lets players dress celebrity avatars, “blatantly rips off” a popular image of Gomez taken for a fashion publication, as seen below:
The complaint further states that while Gomez’s reputation, public image and influence would make her “ideal” to endorse mobile games, she has never made any such endorsements and would never have consented to allowing her publicity rights to be used in such an “unsavory” game, which allegedly lures its users to make large in-game purchases.
The complaint alleges that Gomez has suffered and will continue to suffer actual damages of no less than $10 million. The complaint further describes the defendants’ unauthorized use of Gomez’s publicity rights in its “bug-riddled” mobile game as having “injured” and “harms” Gomez’s right to market her own fashion-focused games.
The complaint seeks damages (including punitive damages), restitution and/or all profits derived from the defendants’ conduct, as well as requesting that the defendants be preliminarily and permanently enjoined from continuing the alleged unlawful activity.
Takeaway: Advertisers should be aware that a use of a look-alike may still give rise to a right of publicity claim. Accordingly, the use of a celebrity’s persona for a commercial purpose, without permission, may give rise to a lawsuit.