This two-part blog posting provides a summary of my Avatars and Virtual Reality presentation at the Summit on the Hill event organized by the 2016 DC Independent Film Festival and hosted by the Congressional Entertainment Industries Caucus. In Part One, I discussed the relevance and importance of right of publicity and other rights clearance considerations. In this Part Two, I offer suggestions for minimizing legal risks when producing and distributing creative materials containing avatars based on real people.

Getting Permission Is the Safest Route

The safest approach is to get permission from the person you want to depict as an avatar. With a written agreement, you can resolve issues involving publicity rights, privacy rights, and defamation.

Caveat. If you go the permission route, respect the parameters of the agreement. For the Band Hero video game, Activision Publishing had the permission and participation of members of the band, No Doubt. The No Doubt band members even participated in a full-day motion capture photography session. However, Activision went beyond the scope of the agreement by allowing video game players to unlock band member avatars and manipulate the avatars to sing songs by other musical artists. Even though they signed a permission agreement, the No Doubt band members pursued Activision for right of publicity and other claims in a lawsuit that survived Activision’s anti-SLAPP dismissal attempts.

If You Don’t Have Permission

If you use the avatar without the person’s permission, avoid using any indicia of the person to market or advertise the film, game, etc. There may be some exceptions to this no-advertising-use principle if you determine that the person is deceased and has no post-mortem publicity rights. Examples of deceased famous people who have been found to have no post-mortem publicity rights include Albert Einstein and Marilyn Monroe.

You can also decrease potential risks if the depiction is a parody, is newsworthy, or is a small component of the overall work. Of course, structuring the depiction in this manner might not be possible for all projects.

Selection of Underlying Materials

Use caution when collecting underlying materials for construction of your avatars and virtual world.

Materials Posted Online. Hopefully, everyone knows that just because material is posted online does not mean the material is available for use by anyone and in any manner.

Creative Commons Materials. While Creative Commons materials are ostensibly free, using them carries considerable risk that can generate significant costs.

Stock House Materials. I favor and encourage the use of stock materials as a less expensive, less risky, and administratively easier manner in which to obtain creative elements to incorporate into your work. However, even the use of stock materials is not always risk free. As I have previously blogged, just because you license the material from a reputable stock house does not mean your specific use is acceptable. The license granted by the stock house frequently includes only rights related to the copyright of the image and leaves the licensee on its own to determine if any other rights are needed. Some stock houses restrict how stock materials may be used with computer software and games including virtual worlds and simulation and training environments. Hence, it is crucial to read and understand the stock house’s license agreement.