ColumnEscape From the Law

The Avengers E3 Disaster: Blame the Developers, not the Lawyers

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One of the most anticipated events of last week’s E3 convention was Square Enix’s preview of its upcoming Avengers game. To put it mildly, the Internet was not impressed. While viewers took issue with the lack of gameplay, the largest complaints related to the game’s visual design and, in particular, with how the various characters were portrayed. The preview focused on the core Avengers from the Marvel Cinematic Universe — Captain America, Iron Man, Thor, Hulk, and Black Widow.

While the characters vaguely resembled their cinematic counterparts, it looked like the developer had not attempted to replicate the main cast’s appearance. The result is something that is best described as uncanny and weird (and not in the good X-Men way). While everyone could recognize the characters and see what the developers were trying to accomplish, the end result was something strange and unsettling — something that was simultaneously alien and familiar like Lester and Eliza from the Simpsons, or Family Guy’s parody of the Annie song “I Think I’m Gonna Like It Here.”

The prevailing theory is that the game’s developer, Crystal Dynamics, was unable to obtain the rights to use the likeness of the MCU actors. But that theory appears to be based entirely on speculation as the exact details of the MCU contracts aren’t publically available. Context clues, however, suggest that the flaws or deficiencies in character design are probably not based on an inability to obtain rights.

Let’s start at the beginning. Most states allow individuals to prevent others from using their “likeness” for commercial purposes without permission. This right covers depictions of one’s physical appearance, name, voice, and signature. A company that violates this right can be required to compensate the affected individual both for reputational loss, and for the profits attributable to the improper use. The right to one’s likeness is not limited to a particular medium, meaning that companies must obtain permission before they use an individual’s likeness in comics, movies, video games, television ads, or even cardboard standees.

But when it comes to the MCU, it seems pretty likely that the actors have already given their permission. For one thing, most of the leads have already been depicted in Marvel video games. Robert Downey Jr. and co-stars Terrence Howard and Shaun Toub were depicted in, and did voice work for, Sega’s 2008 Iron Man video game. The same is true for Chris Evans, Hayley Atwell, and Sebastian Stan in Captain America: Super Soldier, and for Chris Hemsworth, Tom Hiddleston, and Jaimie Alexander in Thor: God of Thunder, both of which were published by Sega in 2011. The physical appearances and voices of several MCU actors were also used in Lego Marvel’s Avengers, though similarities in appearance are admittedly harder to judge, since they’re Legos. According to at least one source, MCU actors are required to “be available to all Disney toys and video game manufacturers.” Based on those examples, and the money that stands to be made from the upcoming video game, it seems unlikely that Square Enix’s depiction of the Avengers was based on an attempt to replicate the MCU characters without infringing on the actors’ likeness rights. The game’s director confirmed as much, and explained that the team never considered using the MCU version of the characters.

This is not to say that licensing played no role in the game’s design. When Square Enix negotiated its license of the Marvel characters, there was almost certainly a conversation between Square and Marvel/Disney regarding the scope of the project, in which the two companies agreed that Square and Crystal Dynamics would provide an independent interpretation of the characters (similar to Sony’s Spider-Man), and that the game would stand on its own, apart from the MCU. If that is indeed what happened, then there would never have been any discussion of using MCU likenesses — the independent creation would have been baked into the cake from the start.

But there’s one more piece of the puzzle. The fact that the game developers sought to put their own spin on the Marvel characters does not mean that they had to bury their heads in the sand and ignore the Marvel movies. Instead, the developers almost certainly looked to the MCU to understand what a successful, entertaining Avengers team would look like. This is why it’s not surprising to see that the developers borrowed some of the most popular aspects of the MCU — a lighter tone, lots of banter, and some of the MCU’s more prominent visual design features. The problem is that it’s hard to know from just a preview whether the MCU influence is simply one aspect of the game, or if the developers were so influenced that they failed to inject their own creativity into the project. That is especially true considering that the preview itself was cinematic in nature and was likely intended to mimic the tone and structure of an MCU preview and say, “Hey, look! These are the characters you know and love!”

Marvel is no stranger to likeness disputes. One of the most interesting legal tidbits about the MCU is how Samuel L. Jackson ended up in the role of Nick Fury. Most of the actors in the MCU were chosen to match a particular character in the comics. For Jackson, that process happened in reverse. The most recent version of Nick Fury in the comics was modeled after Jackson, and used his likeness without permission. When Jackson found out, he agreed not to sue in exchange for the opportunity to play Fury in any film adaptation. The result is one of the most popular and compelling characters to come out of the comics or movies in recent memory.

The story provides an important lesson, showing that character depictions should be driven by a project’s needs, rather than by licensing requirements. Nick Fury would have been a different and less compelling character if he were missing his iconic Jackson look. Square Enix’s characters were unsettling because they felt like they wanted to be in the MCU, but were clearly not. There is no doubt that a game developer, probably even Square Enix, could make a dynamite MCU video game. But Marvel’s Avengers is not that game. Instead of imperfectly copying the MCU’s look and feel, Square Enix should lean more into its well-proven creative instincts and put more of its own spin on the iconic characters.

Adam Adler
Adam Adler is a lawyer, comic book fan, and stand-up comedian based in Washington, D.C. Feel free to contact Adam via e-mail at [email protected]

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