A man named Billy Mitchell was held the world record high scores in the Donkey Kong and Pac Man video games. Mr. Mitchell is well known from a 2007 documentary entitled The King of Donkey Kong: A Fistful of Quarters” which documents a competition between Mitchell and another man attempting to break the world record in the video games.
Cartoon Network has a show called The Regular Show which lampooned Mitchell in an episode with a character named Garett Bobby Ferguson. Garett Bobby Ferguson was portrayed on the show as a floating head with long black hair and a black beard, like Mitchell. Garett Bobby Ferguson is the record holder of the “universe” in a game called Broken Bonz.
Mitchell filed suit in Federal Court in New Jersey claiming invasion of privacy and misappropriation of his character for a commercial purpose. The case was Mitchell v. The Cartoon Network. The Defendants in the case, Turner Broadcasting Corp. and Cartoon Network, defended on the basis that the First Amendment protected them.
When viewing rights concerning conflicts between the rights of publicity and the First Amendment, Courts will look to the Transformative Use Test, a version of the Fair Use concept in Copyright Law. The four factors in the Fair Use Test in Copyright Law are:
- The purpose and character of the use;
- the nature of the copyrighted work;
- the amount and substantiality of the portion of the copyrighted work taken; and
- the effect of the taken use on the potential market for the copyright holder.
Under the Transformative Use Test, a Court will look to whether the copyrightable work taken has been transformed by adding new expression or meaning to the work and whether value was added to the original work. A good example of this is parody or scholarship.
In the Mitchell case the judge found that the parody was a transformative use. The judge stated that Garett Bobby Ferguson on the show was a large floating head without a body who was from outer space. While Mitchell held the records for Donkey Kong and Pac Man, Garett Bobby Ferguson on the show held the record in the entire universe for the made up Broken Bonz video game. When the fictional character loses his title he blows up.
According to the Judge Thompson “By exaggerating plaintiff’s well-known traits to make the GBF character “cartoonishly evil” the defendants have added something new, transforming their appropriation of the plaintiff’s likeness and making their television show a poor substitute for conventional depictions of Plaintiff.”
While this appears to be a correct decision, merely transforming a character is not enough to prevent a violation of Copyright. In the famous Salinger v. Colting federal case in the Southern District of New York Colting created a new work which was based on J.D. Salinger’s original Catcher in the Rye. Colting claimed that his character was a parody of Salinger’s Holden Caulfield. The court disagreed in finding that just because the character appeared in the work as older and in the present day did not transform the character into something new.