Jack Thompson, the Florida lawyer with a seldom-rivaled knack for keeping this site supplied with material (Oct. 20, etc., etc.), has fired off a cease-and-desist letter to the publisher of Mortal Kombat: Armageddon demanding that it stop publication of the game because participants can use it to create characters based on him. A Slashdot posting explains that Thompson’s “image is not actually a selectable character in the game,” but John Scalzo at the Gaming Target website (scroll down) has published instructions on how to use the game’s build-a-fighter mode to create a character based on Thompson, widely loathed among hobbyists because of his courtroom assaults on popular games (among the character’s features: “puffed out self-important look… Banshee Scream. …no victory pose because, let’s face it, he’s never won”). More: XBoxic, GameShout, CNet/GameSpot (& welcome Ron Coleman readers).
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I wonder of Marvel v. NC Soft applies here– Marvel Comics sued NCSoft, the publisher of the PC game “City of Heroes,” because the game, which lets you create a highly customizable superhero (both in terms of appearance and superpowers), which naturally many less imaginative users were using to replicate Marvel (etc.) comic superhero clones. (The suit was also against the game’s developer, Cryptic Studios.) The game’s EULA strongly proscribes infringing characters, but the game can’t prevent you from making them. The parties settled in secret, with no changes released for the game, and Marvel later hired Cryptic to make their own branded massively-multiplayer online RPG. One notes that there was social pressure against these copy-cats, just as there’s pressure against, say, a robot character in a medieval-fantasy game. I’m pretty sure that a Jack Thompson character would find folks both appreciative of irony and get a screenful of invective from the rest.
Many games deliberately include customizeable characters, either with built-in content or user-added content, and, a great bit higher on the programming skill curve, one can modify elements of many more games whose makers don’t include that ability as a feature, but nevertheless sow the abilities to built a game’s player community. It’s a nerdy form of speech, but Jack Thompson knows the first amendment protects nerds as well.
Has he sued the makers of paper and writing utensils? After all, someone with paper and a pencil could create a caricature of him! Or write an opinion that was disparaging to him. Or… well, you get the idea.
Insert gratuitous but highly deserved insult to Jack Thompson here.
I think the Marvel case might be instructive, but as you noted, it resulted in a confidential settlement.
It’s a slightly different situation, however, because Marvel’s characters are considered intellectual property. Jack Thompson may have a right not to have his image reproduced in ways he doesn’t approve of, but that’s not really the same as ripping off his IP.
Regardless, when he puts himself in the public eye on this issue, he should give up any right to be free from public ridicule. And we don’t even need to address the fact that the game company is not the one using his image – it’s the end user who creates it.