Update: Since this story was drafted in early January, Niantic has begun the process of hiring a privacy counsel position (as well as other legal team members) for its San Francisco studio. 

With legal specters still looming from its Pokémon GO app, mobile game developer Niantic is primed to launch a new franchise into augmented reality gaming, "Harry Potter: Wizards Unite." Will Niantic’s acquisition of Evertoon also summon its smoldering right-of-publicity issues?

As you may recall, publicity rights refer to the unauthorized use of a person’s name or likeness, and the release of Pokémon GO raised right-of-publicity concerns from many, including former Senator Al Franken, despite Niantic thrice prohibiting its users from the practice in the Pokémon GO Terms of Service. One manifestation of these concerns was Milwaukee’s failed city ordinance that attempted to prohibit “virtual and location-based augmented reality games” from Milwaukee County parks without a permit. 

Now, having weathered the storm of Pokémon GO lawsuits, Niantic acquired additional funding and start-up Evertoon in the ramp-up to the Harry Potter app. But, integrating Evertoon’s technology may push Niantic back into legal trouble if Wizards Unite presents your photo and voice in a user’s mobile device without your consent. To gauge the likelihood of publicity rights litigation, let’s look at how Evertoon and Niantic gameplay technologies might combine, how publicity rights laws might apply, and how Niantic might avoid violations. 

The Harry Potter app

First, it’s presumed that Wizards Unite will contain the same game design formula that brought Niantic success with prior titles Ingress and Pokémon GO — specifically, a game that rewards users for exploring and interacting with an augmented-reality environment. And, for simplicity’s sake, let’s presume that partners Portkey Games and WB Interactive will only provide Harry Potter–themed content and not any actual game design or coding. What, then, would Evertoon add to the formula?  

Accio Evertoon

The Evertoon app lets users customize avatars using photographs to look like themselves, friends or celebrities, and it lets users create voice recordings for the avatars. Evertoon’s iTunes page includes an in-game screenshot containing actress Emma Watson’s photo. Its iTunes description states: 

"With photos, voice files, and social sharing, it’s easy to see how Evertoon’s technology could be viewed as encouraging the unauthorized use of other’s likenesses. And now, the Evertoon team is tasked with adding a social platform (presumably with similar technology) to Niantic’s games. It’s unclear whether this includes importing celebrity photos and voices into Wizards Unite or posting Wizards Unite content to YouTube."

Arresto momentum

Wizards Unite could come to a grinding halt by an imaginative range of publicity rights violations resulting from the combination of Niantic and Evertoon technologies. Consider one: a business owner with the Harry Potter equivalent of a Pokéstop creates unauthorized celebrity avatars for a local promotional event. Seems unlikely? Niantic has already felt the legal effects of a failed Pokémon GO event, and California courts have already encountered ill-conceived apps that include friend and celebrity likenesses.

One such ill-conceived app was “Stolen,” a game that allowed users to collect and trade Twitter profiles using virtual currency. The game neither notified nor sought consent from Twitter profile owners for the use of their likenesses within the app. Thus, some unsuspecting Twitter users received public notice of their virtual value and the name of the player that “owned” them.  

In response to public pressure, including from Rep. Katherine Clark, Hey, Inc. shut down the game and then re-launched less than a month later as “Famous” with insubstantial changes. Stolen was the subject of a right-of-publicity class-action settlement from Twitter profile owners, and subsequently, Hey, Inc. closed its doors. 

Stolen is a cautionary tale with differences and similarities to Niantic’s current position. The Wizards Unite app probably will not automatically import celebrity photos (as Stolen did), but it will likely share user creations on social media (as Evertoon does). Like Stolen, some unsuspecting friends and celebrities may receive notice via YouTube that their likeness was used in Wizards Unite.

Diffindo Niantic

In most instances of illegal user-generated content, the online service provider (Niantic) is severed from liability thanks to Section 230 of the Communications Decency Act. But, a would-be defendant like Niantic cannot count on immunity from an unauthorized likeness created by a user because courts do not consistently apply Section 230 immunity in publicity rights lawsuits. Why no immunity? Some states view publicity rights as intellectual property rights, and IP claims are expressly excluded from Section 230. Circuit courts split on whether this only applies to federal IP and not state IP claims.

Right-of-publicity laws 

Uncertainty over Section 230’s applicability stems, in part, from the decades-old uncertainty in how to define publicity rights. Publicity rights are defined in about half of U.S. states and only a handful of countries internationally.

Simply put, it’s unauthorized use of a person’s likeness. But, each element of the definition is debatable. Must the use be to a commercial advantage? Must the person be a celebrity? Must the likeness be photographic? The answer to each depends on the state. The definitional issue has created advocates for a unifying federal statute in academia and industry associations for decades.  

Confundus

The issue is further confounded by its ever-broadening nature. Niantic might comply with home-state California’s right-of-publicity statute while violating similar statutes in other states. In fact, the common elements to each right-of-publicity law are expressed so differently from one jurisdiction to the next that confusion over Section 230’s applicability, and even confusion as to whether an infringement has occurred, is easily contestable. Worse yet, as the remaining states enact newly codifies publicity rights, the publicity rights definition diversifies further, making Niantic’s future compliance increasingly circuitous.

The solution

Niantic seems to have doubled-down on the tenuous position established by Pokémon GO, and, after several lawsuits, the developer has no favorable court opinion on which to rest. So, the legal claims will probably keep coming. Will a right-of-publicity claim be successful? If Niantic continues to slither into the realm of infringement, and if the definition of publicity rights continues its transmutation, then surely the answer will eventually be, “yes.” 

Lumos maxima

How does Niantic prevent this litigation? Small tech start-ups can rarely afford answers from in-house or outside counsel, and so, rely on a proactive legal community to raise awareness. And, the simplest solution may be a game design that circumvents the legal issue. Fortunately, Niantic is an exception with $200 million in recent funding. Thus, the developer can now afford the kind of robust legal team capable of helping it see the light.

photo credit: Rad Fadilla Relikui Kematian (Deathly Hallows) via photopin (license)