As early as 1992, games were mapping human faces onto screens. Mortal Kombat was one of these games, and its first actor was Daniel Pesina. Verge has the story of how one game design student ran into Pesina accidentally as he was teaching martial arts. The gracious game actor agreed whole-heartedly to an interview, and he bears all—from Mortal Kombat‘s inception to his career now. What’s most interesting though, is that because the games industry was young, and its actors without a union, their work was easy to exploit.
When the game, and then the sequel, sold something along the lines of 1,000 times that many arcade machines, and the console ports did far larger numbers, Pesina became worried.
His formal complaint against Midway, Williams, Acclaim, Nintendo and Sega alleged that “the defendants used [Pesina’s] persona, name, and likeness without authorization in the home version of Mortal Kombat and Mortal Kombat II and the related products, thereby infringing his common law right of publicity,” and that “the Midway defendants breached their duties of good faith and fair dealing.”
The court saw in Midway, Williams, Acclaim, Nintendo and Sega’s favor, noting that Pesina was unable to prove that his likeness was recognizable in the game — citing a survey in which 6% of 306 people felt he looked like the in-game character — that he was not enough of a known celebrity for the games to infringe on his right of publicity and that his contracts prevented him from claiming he wasn’t properly compensated.
Just how do we define the permission of likenesses today? If there’s any advice Pesina’s lawyers could offer, it’s that you define your terms early. Read on to cases with how the NCAA games try to pin down the judicial accuracy in the word “likeness.”