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Game Over for Donkey Kong Record Holder’s Right of Publicity Lawsuit

"The character literally explodes, unlike Plaintiff."

In February 2011, Cartoon Network's The Regular Show aired an episode called "High Score." In it, the show's two main characters, a talking blue jay and a talking raccoon, try to beat the universe-wide record for an arcade game called Broken Bonez. In doing so, they have to contend with the champion, GBF, a giant floating head with a beard from outer space. At the end of the episode, the giant head "explodes into goo."

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Four years later, on-and-off-again Donkey Kong world record holder Billy Mitchell filed a lawsuit in a New Jersey federal district court against Cartoon Network for infringing his right of publicity—in other words, for using his image without permission.

Carton Network didn't waste any time pretending that GBF wasn't a reference to Mitchell, who is best known for being the antagonist in the documentary The King of Kong: A Fistful of Quarters which follows one arcade gamer's quest to beat Mitchell's Donkey Kong world record. Lawyers for the network instead argued that GBF was a "cartoonishly evil" parody of Billy Mitchell, which they couldn't be sued for.

The judge ended up agreeing with them, but her opinion couldn't resist jabbing at Mitchell. "The television character does not match the Plaintiff in appearance: GBF appears as a non-human creature, a giant floating head with no body from outer space, while Plaintiff is a human being," she wrote.

The judge broke it down further: "Rather than merely being recognizable by his hair and beard, GBF appears as only hair and a beard. Rather than holding the world record at a well-known game, GBF holds the record for the entire universe. Rather than questioning his opponents' honesty, GBF simply begs his opponents to let him keep his high score. And when GBF loses his title, the character literally explodes, unlike Plaintiff."

In New Jersey, as in other states, the right of publicity allows you to sue for an unauthorized "appropriation of likeness." However, defendants are not liable for a "transformative use," such as a "lampoon, parody, or caricature."

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There's a whole rash of right of publicity lawsuits around video games. Football players have sued EA over their appearance as characters in the video game Madden (it's still ongoing). Gwen Stefani and No Doubt sued Activision over their game avatars in Band Hero (they settled). And Manuel Noriega sued over being cast as a villain in Call of Duty (he lost).

As with Noriega, Mitchell's lawsuit against Cartoon Network was less about the lost licensing opportunity, and was instead much more personal. If Mitchell disliked his portrayal in King of Kong, his reaction to The Regular Show was even stronger. In a declaration dated October 26, Mitchell calls the depiction "a direct rip off of my image and likeness, only in a very disparaging way."

"The actions of this character, which I have personally observed, make me look some sort of monster, or creature, with no heart or decency," he said. "This is simply not me, and places me in a very unfavorable light."

His own admission ended up working against Mitchell. If GBF was "simply not me," how could he sue over it?

But note: you can't immunize yourself from a right of publicity lawsuit just by turning someone into a giant floating head from outer space. Although Mitchell v. Cartoon Network cites California cases, it neglects to mention the most famous California right of publicity lawsuit: White v. Samsung, a case where Wheel of Fortune's Vanna White sued Samsung over this ad:

Vanna White won—even though the depiction is of a robot in a wig, whereas White is presumably a human being. Maybe Samsung would have been better off if they had made the Vanna-robot's head explode?