Former Disney child star turned singer, Selena Gomez, is suing the makers of a smartphone fashion game for creating an avatar strongly resembling her image.

The ‘Clothes Forever – Styling Game’ allows players to interact with their favourite celebrities such as Taylor Swift and the Kardashians.

It is “currently rated a measly 3.5 stars out 5 by users on the Apple App Store website” according to Gomez’s legal representatives, which is deemed to unnecessarily muddy her image with a product of low quality. The game has been criticised for several reasons, including allowing for in-game purchases for $99.99 that are used to fund imaginary spending.

Gomez claims the app has used her likeness for one of its characters without her permission and has filed a $10 million lawsuit at the Superior Court of California.

BACKGROUND

According to legal documents obtained by TMZ Gomez claims an in-game avatar closely resembles a cover shoot she did for Flare magazine in November 2015. The avatar’s pose and outfit appear strikingly similar to the cover shot.

The action is being brought against several software development and distribution companies including Chinese Guangzhou Feidong Software Technology Co and UK-registered Mutant Box Interactive Limited. Both have conducted business in the state of California.

Credit: Guangzhou Feidong Software Technology Co., MutantBox Interactive Limited, Flare Magazine

LEGAL POSITION

In the U.S.A, publicity rights are state law based as opposed to federal, although the use of a celebrity’s likeness in expressive work is protected under the First Amendment. In California, there is both a statutory and common law right of publicity.

The common law elements Gomez will need to make out are:

1) the avatar appropriates Gomez’s likeness advantage to the defendant’s advantage, commercially or otherwise

2) without her consent; and

3) causes her injury.

The statutory right under Cal. Civ. Code section 3344(a) adds two further elements, namely that there is a knowing use and a direct connection between the use and the commercial purpose. The right to publicity can arise from various aspects of a celebrity’s persona including voice, image, and other attributes such as distinctive props that evoke the celebrity’s image.

WIDER ISSUES

In a similar privacy case, actress Lindsay Lohan failed to establish that a character in Grand Theft Auto V was based on her. Six New York judges ruled that the in-game character ‘Lacey Jones’ merely resembled a generic young woman. However, importantly, the judges accepted Lohan’s claim that an avatar could constitute a “portrait.”

The court concluded that a graphical representation in a video game or like media may constitute “a portrait” within the meaning of the New York Civil Rights Law article 5. In an era where privacy is hard to come by and image easy to exploit, this is a welcome development – particularly for celebrities like Gomez.