Not Playing Around: 8 Lawsuits Involving Video Games

Former pro football player Jim Brown filed a lawsuit against Sony and Electronic Arts.
Former pro football player Jim Brown filed a lawsuit against Sony and Electronic Arts.
George Rose, Getty Images

Sam Keller, who played college football at Arizona State and Nebraska, recently filed a class-action lawsuit claiming that video game giant Electronic Arts and the National Collegiate Athletic Association illegally profit by using college basketball and football players' likenesses in video games without their permission. While the games don't use the players' names, the uniform numbers, height, weight, home state, skin tone, and even hairstyle correspond to actual student athletes, and gamers can download rosters of the players' names online. Here are 8 other examples of celebrities and athletes who took issue with their portrayal in video games and advertisements.

1. Jim Brown of the Cleveland Browns

In 2008, former Cleveland Browns great Jim Brown filed a lawsuit claiming Sony and Electronic Arts used his likeness in their Madden video game without his permission. According to the New York Daily News, the Hall of Fame running back sued because the All Browns Team, a collection of the greatest players in Cleveland Browns history, features "a muscular African-American player wearing number 32." Earlier this year, the NFL Players Association reached a $26 million settlement with its retired players after a federal jury found that the union's licensing subsidiary had allowed Electronic Arts to use retired players' likenesses in their games without compensation by scrambling uniform numbers and not using the players' names.

2. Not so Dee-Lited with Sega

In 2003, ex-Dee-Lite star Kierin Kirby, better known as Lady Miss Kier, filed a lawsuit in Los Angeles Superior Court against Sega because the main character in the popular video game Space Channel 5 bore a "striking physical similarity and likeness" to her. Kirby sought more than $750,000 in damages for misappropriation of her likeness and claimed, among other things, that the character's name, Ulala, was a blatant rip-off of one of her signature phrases, "Ooh la la." Kirby, who burst onto the scene with Dee-Lite in the early '90s with the hit song "Groove Is In The Heart," had declined a $15,000 offer from Sega three years earlier for the rights to use her image in the game. Sega argued that a version of the game featuring Ulala was released in Japan between 1997 and 1999 and the creators had never heard of Dee-Lite or Lady Miss Kier. Game over. Kirby lost the suit and a later appeal, and she was ordered to pay all of Sega's legal fees, which totaled more than $600,000. Ooh la la!

3. Baseball's old-timers strike back

Darrel Chaney, who had more strikeouts than hits in his 11-year major league career, led a group of former major leaguers in a class-action lawsuit against nearly a dozen computer game makers in an effort to earn similar compensation to what baseball's current players receive in exchange for the right to use their likenesses in games. Chaney's efforts began 2 years after Don Newcombe and several of his Brooklyn Dodgers teammates filed a similar suit against Warner Communications, the makers of Hardball 5. The lawsuits were settled in 2000. Most baseball video games no longer use former players' actual names.

4. The Romantics don't like much about Guitar Hero

The Romantics filed a lawsuit against Activision Inc., the maker of Guitar Hero, claiming that the video game infringed on their rights by featuring a recording similar to the band's best known song, the 1980 hit "What I Like About You." While Activision obtained permission to use a cover version of the song, the Romantics claimed the imitation was too much like their original recording. A federal judge in Detroit ruled against the band, which was seeking unspecified damages and an injunction on the game's sale, indicating that Activision had acted in good faith by securing the rights to record a cover version.

5. BMX racer didn't want an XXX reputation

Professional dirt-bike racer Dave Mirra filed a lawsuit against video game maker Acclaim in 2003, seeking over $20 million in damages for using his name and likeness in a game that allegedly damaged his image. According to the suit, Mirra had originally agreed to be associated with the game, BMX XXX, which the company described to him as a mature game in the vein of such films as "Airplane!" The end product, however, was much racier. Mirra alleged in the suit: "Acclaim changed the concept of the game to become more sexually explicit and pornographic, ultimately settling on nudity as a major selling point." The lawsuit was eventually settled amicably, with no monetary damages paid by either side.

6. Double trouble

In 2004, Mary-Kate and Ashley Olsen sued Acclaim for close to $500,000, citing breach of contract after the cancellation of the Mary-Kate and Ashley in ACTION! video game. Acclaim was ordered to pay nearly $178,000 as part of a settlement and filed for Chapter 7 bankruptcy soon after.

7. Suit the rapper

Curtis Jackson, better known as 50 Cent, filed suit against Traffix Inc. for $1 million for using his image in an online advertisement without his permission. As part of the Flash-based game "Shoot the Rapper," users were prompted to shoot 50 Cent as he walked along a red carpet with a click of the mouse. A successful shot redirected the user to a Traffix client's Web site. "It looks like him, and there's no doubt the character is intended to be him," 50 Cent's lawyer said.

8. "Finish him" in court

Ho Sung Pak sued Midway, Acclaim, Sega, and Nintendo, the makers of Mortal Kombat, for using his likeness and name without his consent. Pak, whose name appears in the credits, claimed the character Liu Kang was based on him. Pak was paid $2000 to lend his support to the arcade version of the game produced by Midway and two other companies, but sought compensatory damages for the alleged misappropriation of his name and likeness in the wildly popular at-home version. The case settled on the eve of a jury trial. Pak, who is a member of the Black Belt Hall of Fame, played Raphael in the second and third Teenage Mutant Ninja Turtles movies.

Bonus: I'd like to buy a foul

This lawsuit involves an electronics giant, not a video game, so we're including it as a bonus. In 1993, Wheel of Fortune's Vanna White filed a lawsuit against Samsung for misappropriating her identity in a print advertisement. The ad, for a VCR, featured a robot in a blond wig and evening gown turning letters with a caption that read, "Longest running game show. 2012 A.D." White won the lawsuit, which was affirmed by the United States Court of Appeals for the Ninth Circuit. The court ruled in favor of White's claim of a right to her property of publicity.

Take Advantage of Amazon's Early Black Friday Deals on Tech, Kitchen Appliances, and More

Amazon
Amazon

This article contains affiliate links to products selected by our editors. Mental Floss may receive a commission for purchases made through these links.

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Oral History: In 1985, Mr. Snuffleupagus Shocked Sesame Street

Sesame Workshop
Sesame Workshop

On November 8, 1971, during the third-season premiere of Sesame Street, Aloysius Snuffleupagus was introduced to the world and proved immediately indispensable: Lacking a watering pot, Big Bird was delighted to see the massive, lumbering creature use his trunk to tend to his garden. The two became fast friends.

No one else, however, could be absolutely certain that Mr. Snuffleupagus actually existed.

Time and again, “Snuffy” would shuffle into the frame, just missing the adult residents of Sesame Street. Big Bird would try to convince them his pal was real. They’d humor him, but never really believed it.

So it went for 14 years, until the show’s producers began to hear of a growing concern among viewers: In the wake of news reports about child abuse cases, Big Bird’s implausible eyewitness testimony about his oversized friend might have real-life consequences. If adults were ignoring Sesame Street's biggest star, would kids feel like they wouldn't be heard, either?

The solution? Get rid of the ambiguity and let Snuffy loose. Three decades after his coming-out party, Mental Floss spoke with the writers, producers, and performers who had the delicate, important task of restoring Big Bird’s credibility and resolving his droopy-eyed friend’s identity crisis.

I. The elephant in the room

Sesame Workshop

Sesame Street was just two years old when Jim Henson decided he wanted to incorporate a massive presence on the show: A puppet that required two men to operate. Dubbed Mr. Snuffleupagus, the character debuted in 1971. News media described him as a “large and friendly monster resembling an anteater.” Then-executive producer Dulcy Singer and writer Tony Geiss agreed he would be Big Bird’s not-quite-real friend—a reflection of the wandering imaginations of the show’s preschool-aged audience.

Norman Stiles (Writer/Head Writer, 1971-1995): The character was kind of a collaboration between [executive producer] Jon Stone and Jim Henson. I think the initial idea was really to be ambiguous in the sense that, well, Big Bird says he’s real and the audience sees him and yet he always manages to not be there when the other people were there—so is he real or isn’t he real? The whole idea was to not really answer that, but to leave it as an open question.

Emilio Delgado (“Luis,” 1971-2017): It was going with the whole thing of a child’s imaginary playmate, which a lot of kids have. Big Bird was the only one who could see him. When adults came around, he would be talking about Snuffy this, and Snuffy that. We’d just say, "Yeah, sure, OK." We didn’t believe him.

Carol-Lynn Parente (Executive Producer, 2005-2016): There was a lot of humor to be mined from the issue. We never explained whether he was imaginary or not. Kids were able to see him, but adults couldn’t. You never really knew—was he imaginary? Playing with that question was a lot of fun; kind of a healthy ambiguity.

Stiles: You really had to believe that it was just terrible coincidences and quirks of Snuffy’s own personality that made it so that he just wasn’t there when Big Bird wanted him to be there to introduce him to his friends.

Delgado: Jerry Nelson originally did the voice and was inside the puppet, in the front. Bryant Young was in the rear. Boy, did we get jokes out of that.

Parente: He’s one of the tougher puppets to operate. Just the massive size of him requires certain [camera] blocking. It’s very physical, and very warm inside his belly. It’s only so long the performers can go through takes before they stop and need to be fanned off before they can start again.

Delgado: Later, Jerry stopped doing it. Maybe his back was bothering him. That’s when Marty took it over.

II. Identity crisis

2004 Sesame Workshop

“Marty” is Martin P. Robinson, a puppeteer who assumed the front end and voice of Mr. Snuffleupagus in 1981. For the first 10 years, the character had been a proverbial one-joke pony (or elephant), catching sight of adults and getting so excited he somehow wound up missing them. This would continue for several more years, which eventually began to wear on the nerves of both Robinson and Caroll Spinney, the actor who has portrayed Big Bird since his inception in 1969. Robinson was especially vocal about Snuffy not being a figment of his friend's imagination.

Martin P. Robinson (via Still Gaming: Lee & Zee Show Podcast, 2009): He was never imaginary. I say that a lot. And I say it with great strength of conviction. He was my character, he was never imaginary; he just had bad timing. He was shy, he had bad timing, and the joke was, he’s big, you can’t miss him, but adults being the way they are—preoccupied, going to work, you know—they miss those little details. And Snuffleupagus just happened to be one of those little details that they kept missing year after year after year. So he was a good, real friend to Bird; it’s just that no one else ever took the time to actually meet him.

Delgado: How long can you play a joke out? As performers, as Muppeteers, as artists, you can only carry a story so far before you have to do something else with it. They probably felt that’s what was happening.

Robinson: Those scripts just got so old. Caroll and I would look at the scripts and say, "Oh, lord, this one again."

Delgado: The adults would play along, knowing he didn’t exist. At the same time, I liked the idea of Marty saying, "OK, he just happened to be there at the wrong time." People were barely missing him.

The actors’ desire to play off a new dynamic was soon joined by a more pressing, potentially catastrophic issue. In the early 1980s, news programs like 60 Minutes were reporting on troubling statistics involving child abuse both at home and in daycare centers. If Big Bird—ostensibly the show’s stand-in for the 6-year-old viewing audience—was being brushed aside when trying to convince people Snuffleupagus was real, there was the chance children might not be convinced adults would believe them if they came forward with more troubling claims.

Stiles: We started getting some letters from people who worked with children who had experienced some kind of abuse, and what we were told was that they often don’t think they’ll be believed because the stories are so fantastic in their minds.

Michael Davis (Author, Street Gang: The Complete History of Sesame Street): I remember having my own internal conversations about Snuffy. My kids were in daycare and there were a lot of those stories about what was happening in daycare, a lot of those stories about children being abducted and kids on the back of the milk cartons and all of that. It became kind of a national focus, sometimes bordering on a mania.

Parente: All this was really stemming from a specific set of incidences in the news, claims of sexual abuse going on in some daycare centers, and kids being questioned about what was going on. The fear was that if we represented adults not believing what kids said, they might not be motivated to tell the truth. That caused us to rethink the storyline: Is something we’ve been doing for 14 years—that seemed innocent enough—now something that’s become harmful?

Delgado: It was a very serious consideration. It was something that could happen in their lives, and the [Children’s Television] Workshop was very attuned to things like that.

The CTW—now Sesame Workshop—is the organization comprised of researchers, psychologists, and freelance child experts who generate and evaluate the show’s themes and messages to make sure they’re going to be understood. Revealing Snuffleupagus required a concentrated effort to make certain Sesame Street’s writers and producers were communicating the idea effectively.

Parente: The process has been pretty much the same all these years. We look to experts in childhood development and that helps guide us—what’s the best way to address what we want to address? That’s the model Sesame was founded on, with writers, producers, educators, and researchers all working together.

Davis: I do think that the result from Sesame Street was a smart one because Big Bird, as a character, is a projection of a 6-year-old. So to have a situation where the 6-year-old’s eyewitness reports are being doubted so deeply and ridiculed ... They are kind mocking him a little bit and rolling their eyes at him.

Parente: It’s rare a children’s show is grounded in the real world. Much of our competition is in the animated world, where fantastical things happen. This is a real neighborhood. We think of it as kids coming to a play date with real friends, and it requires a real investment in how you tell a story.

Lawrence Rubin, Ph.D. (Child Psychologist): The writers took a real-world concern and asked themselves, "Are we helping or hurting kids by keeping Snuffy in the imaginary closet, and do we have a moral imperative to respond to a real issue by changing something about the show?"

Stiles: We wanted kids to know that grownups will believe them, but we wanted to preserve the fun that we were having, so I proposed that we have some of the grownups believe Big Bird, and that was the first step.

For the show’s 16th season in 1984 to 1985, producers laid the groundwork for the eventual reveal by depicting Big Bird as knowing the difference between fantasy and reality, with a handful of adults taking him at his word even with Snuffy still at large.

Robinson: They devised this two-year scheme, where in the first year they would have some of the cast members learn from Bird that Bird could indeed tell the difference between what was real and what was imaginary, that he knew the difference and was very clear about it. And once they got that from Bird, they said, "Okay, you know the difference. If you say Snuffy is real, then he’s real and we’d love to meet him, whenever the timing is right." And the other half of the adults said, "What, are you crazy? He’s imaginary! There’s no such thing as a Snuffleupagus."

Stiles: That changed the dynamic between the grownups ... Now, Big Bird wasn’t alone. He had grownups believing him, and we had a new dynamic where the grownups who believed him would now actually try to see Snuffy. That went on, I think, for about a year. I don’t remember the exact combination of conversations, but we finally decided, alright, let’s move. Just creatively, this has run its course.

III. The reveal

The show’s 17th season premiere aired on November 18, 1985. As promised, Big Bird made arrangements to introduce Snuffy to the adults on Sesame Street by telling them he’d yell out a secret word (“Food!”) when they were ready. Unfortunately, Snuffy is too nervous to remain idle, and Big Bird has a few false alarms that make the adults even more dubious.

Rubin: Watching this now, I’m 60 years old, sitting on the edge of my chair, going, "Oh, God, don’t go away! Stay there! Wait!"

Stiles: [Our goal] was to do what we had always done before, which was, "If you stay here, he’ll be here."

Robinson: They did it in one show ... I always thought it would have been nice if they could have revealed him to one person at a time. So that one person would have actually seen him, and then go back screaming to the rest saying, "I saw him!"

In a somewhat bizarre non-sequitur, talk show host Phil Donahue appears to pick up his broken toaster from Luis’s Fix-It Shop and begins to engage characters on the merits of Big Bird’s preferred code word.

Davis: You know, the first thing that comes to mind is that bimodal audience that they always talked about and writing something that would be appealing to adults as much as it would be to kids. Having Phil Donahue being the protagonist kind of making fun of himself and his show was hilarious.

Parente: There are plenty of studies that prove kids get more of the educational value when there’s co-viewing going on, so things like Donahue and other celebrities are by design. When you have a parent viewing with their child, they can ask questions and spawn a conversation.

After some protracted teasing of the audience—Snuffy can’t seem to stay put—the entire cast meets Snuffy and stares at him in awe.

Robinson: He’s starting to peel off and Elmo actually grabs onto his trunk and holds him down. There was a shot when they actually pinned Elmo onto the trunk, and I’m whipping him around in the air like a pinwheel. But it held him up just long enough so that the cast actually showed up, and saw him there. And so, one by one, down the line, it was this line of shocked faces. And they all came up and shook hands with him.

Delgado: We were all amazed that this giant elephant-looking thing was actually real. You get a big reaction from everybody, and everybody was very happy Big Bird had been telling the truth all along. He was very happy people believed him.

Stiles: Big Bird [said] "Well, now what do you have to say?" You know, that was really his moment, and I just loved giving him the opportunity to say that.

Rubin: It was incredibly respectful of a child. The conversation did not diminish Big Bird, it wasn’t dismissive or pandering. It’s how you hope a conversation with someone wishing to be heard would go.

Delgado: It was kind of a big party. And Big Bird has a child’s mind, so he was satisfied. Like, "See, I told you he was real!"

Near the end of the episode, cast member Bob McGrath makes a pointed comment: “From now on, we’ll believe you whenever you tell us something.”

Rubin: It was so honest. Some parents get caught up in authoritarian mode and don’t have the flexibility to retract, recant, or acknowledge a kid’s reality. He was the collective voice of parents—"Sorry, we should’ve listened."

Parente: [A line like that] is exactly what we look to the child experts for, bringing in or soliciting experts to weigh in on specific dialogue to get it right. Simplicity is key, particularly with kids. It’s not about making it flowery with jokes, not doing it in the form of song. Songs are great, but often lyrical messaging is not necessarily the best takeaway. When it’s simple and straightforward, that’s when you have your best chance.

IV. Aftermath

Sesame Workshop

In 1985, Sesame Street was averaging 10 million viewers a week, making any pivotal episode hugely influential with its young audience. Later that year, they depicted the characters of Gordon (Roscoe Orman) and Susan (Loretta Long) adopting a child. Coupled with acknowledging the real-life death of cast member Will Lee (Mr. Hooper) in 1982, Snuffy’s status as a real Sesame citizen was part of the show’s overall evolution from teaching the alphabet to imparting life lessons.

Davis: I think it was a really smart thing for them to eliminate that as a possibility for the viewer and to say that even as outrageous as the claim sounded at first, here was this real-life big woolly mammoth of a friend that they just had not yet met. I give them a lot of credit for changing with the times and I remember some people saying, "Oh, it was politically correct," but it’s not that at all. It’s more that society changes and the way that we view things changes and Sesame Street has successfully negotiated those waters through the years.

Snuffy got topical again in 1992, when the show decided to depict his parents going through a divorce. Unlike his big reveal, this one didn’t go so well.

Parente: It was the first time in history we ever taped an episode and then didn't air it.

Stiles: He had kind of this family going and it helped that we had this family. There weren’t any other puppet families that we had, so I think it was a natural choice.

Delgado: He got a little sister later on.

Davis: It is interesting that they choose to have Snuffy’s parents get divorced because that character, he’s a little bit of a downer. He’s got a little Eeyore about him.

Parente: We knew enough to put it through the rigors of testing before it would air. And it was a lovely episode, but we found kids were upset after watching it. They were just not familiar with what divorce was.

Delgado: Kids freaked out.

Stiles: The shows weren’t necessarily for the child who’s watching whose parents are divorced, although that was part of it. It was, I think, more so that children would understand if they meet other children whose parents are divorced … The whole thing is difficult, because you’re opening up this can of worms for children who may not have even thought of the possibility that their parents might get divorced. Now all of a sudden, they walk into the kitchen and see their parents arguing about something and they go, "Uh-oh."

Parente: Snuffy’s family was going through it in real time, right in the midst of the crisis. We learned if we can see the characters after coming through divorce, it’s a better way of approaching it.

Despite the hiccup, Snuffy has remained a high-profile and viable member of the Sesame gang for well over 40 years. Most recently, he’s been spotted on Twitter, where he follows just one account: Big Bird’s.

Parente: One of my favorite things is to see people meet Snuffy for the first time. He’s bigger than life. He takes your breath away.

Davis: Sesame Street at its finest moments always found a way to include humor and to use it to help smooth things along and to help it go down in a way that was acceptable. You can’t give enough credit to the writers for brilliantly finding a way to make things funny for people who drink from sippy cups and people who drink from martini glasses.

Parente: We want to be helpful and useful for kids as well as parents. I think that’s why we’re here, 46 years later, always paying attention. What is it kids and parents need from us? In 1985, what they needed us to do was to stop that storyline and present a model of adults listening to children.

Delgado: It's definitely one of the biggest things to happen on the show.

Parente: The appeal of Snuffy is that he’s Big Bird’s best friend. People love Big Bird, so he benefits by association: "If that’s Big Bird’s friend, he’s my friend, too."

This story has been updated for 2020.