Feb 11

Artists, sue at your own risk

Kierin Kirby from Dee Lite vs. Ulala from Space Channel 5

Where I work, we often advise artists about the downsides of getting involved with the formal legal process: the expense, the emotional toil, and the unforeseen consequences. This is a story about how a even a legitimate lawsuit backfired hard. Incredibly hard. Artists who think a lawsuit is a good way to solve a problem, be warned. Feel free to skip to the end if you just want to hear the moral of the story.

Remember Deee-lite? No?

Deee-Lite was a dance music group in the early 1990s led by quirky, pigtailed front-woman Kierin Kirby. Their most famous song “Groove Is in the Heart” is one of those songs that you remember as soon as you hear it.

Exhibit A: Groove is in the Heart and Kierin Kirby

Remember Space Channel 5? No?

Space Channel 5 was a moderately popular series of music-based video games created by Sega and released for Dreamcast internationally in 2000.

Exhibit B – Space Channel 5

In 2003, lead singer of Dee-lite, Kierin Kirby, made a critical error. She assumed that the general public had retained any memory of her career and sued Sega for “misappropriating her likeness” in Space Channel 5.

She claimed that (1) the game’s main character, Ulala, looked and danced just like her in her Dee-Lite days, and (2) Sega never got her consent to design the character in her likeness.

Sega of Japan, it seems, was up to some shenanigans. When the game was first being developed in Japan, Sega of Japan tried to license the song “Groove Is In The Heart” as the flagship song for the game for $16,000, and Kirby didn’t give her permission. It must’ve been strange then for Kirby, years later, to find out that the main character of that same game bore a striking resemblance to her younger self.

Lady Kier from Dee Lite vs. Ulala from Space Channel 5

Generally the law in California, where the suit took place, prohibits anyone from knowingly using another person’s name, voice, or likeness to advertise or sell a product without the consent of that person. ( See California Civil Code § 3344(a) )

In her complaint, Kirby described Ulala as having “nearly the same distinctive make-up, large eyelashes, doe eyes, red/pink hair, pony tails, cute backpacks, mini-skirts…and platform shoes.” She also claimed that Ulala’s name was based on how Kirby introduced herself in the “Groove is in the Heart” video with the phrase “ooh la la.”

The judge didn’t find this convincing. On summary judgment (before trial), the judge determined that Space Channel 5′s main character, a space-age reporter from the 25th century, was unlike any public depiction of Kirby. And even if Ulala was designed after Kirby’s public persona, the First Amendment would protect the depiction.

Additionally, Sega somehow managed to prove that “the Japanese creators of Ulala — who created her name, look and dance moves — had never even heard of Deee-Lite, [Kirby] or Groove is in the Heart at the time they created Ulala.”

Maybe this was just after-the-fact backpedalling by Sega’s employees. OR maybe Kirby’s likeness wasn’t really as unique as she thought it was. After all, Kirby was suing Sega’s Japanese designers for stealing an image which she herself “stole” from just about every Japanese teenage girl in the mid-90s.

This is the scary part

In the end, Kirby lost the case, even though the game did seem to borrow liberally from Kirby’s look and persona. Adding insult to injury, the court ordered Kirby to pay Sega’s attorney fees.

Imagine this: When Kirby filed the suit in 2003 she demanded that Sega pay her $750,000. By 2006, because she lost the case, she now owed Sega over $600,000.

That amount doesn’t take into account how much money she spent to have her own lawyers fight Sega for three years which was probably also another $100,000-$500,000.

Do you still want to sue anyone?

via jwz and Kirby v. Sega of America, Inc. 144 Cal App 4th 47 (2006, Cal App 2d Dist).

As a law-student legal clerk at New Media Rights, Shaun Spalding provides pro-bono legal assistance to artists, filmmakers, entrepreneurs and anyone else who creates or shares their work online. If you have any legal questions, you can direct them to Shaun’s supervising attorney. You can tap into what he's thinking via Tumblr, or figure out what he's doing via Twitter: @SASpalding

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