Plants vs. Zombies, an addictive game that is premised upon just what the title would suggest, features a character called the “Dancing Zombie.” Although fairly obscure in that the face is just a regular zombie-face, the style of dress and dancing of the zombie pretty strongly suggests that the character is intended to be a reference to Michael Jackson. (For the record, the Dancing Zombie pre-dates Jackson’s death, and is a reference to Thriller rather than tasteless commentary on his demise.) Dancing Zombie basically does a zombie waltz to attack your plants, and then spawns four Undead Dancing Minions, back-up zombie dancers from the set of Thriller who join in the fight. The in-game bio of the Dancing Zombie also strongly hints that the connection is deliberate:

Turns out Michael Jackson’s estate got wind of the game, and sent an objection to Popcap disputing their right to feature the Dancing Zombie character. Rather than engage in litigation against a very well-funded foe, Popcap broke down and agreed to replace Dancing Zombie with “Disco Zombie”:

The Estate of Michael Jackson objected to our use of the ‘dancing zombie’ in PLANTS vs. ZOMBIES based on its view that the zombie too closely resembled Michael Jackson. After receiving this objection, PopCap made a business decision to retire the original ‘dancing zombie’ and replace it with a different ‘dancing zombie’ character for future builds of PLANTS vs.ZOMBIES on all platforms. The phase-out and replacement process is underway.

Some quick research failed to turn up what exactly the Michael Jackson Estate’s “objection” was, but presumably it was some variation an alleged violation of Right of Publicity. Right of Publicity is a sort of hybrid version of unfair competition and/or misappropriation, although it is distinct from other forms of IP law, and is administered by the states rather than at the federal level. However, thanks to the First Amendment, the right of publicity has several exceptions, generally thrown under the catch-all category of “newsworthiness.” One of these exceptions is that there is no tort under right of publicity for a depiction of an individual for “entertainment and amusement concerning interesting aspects of an individual’s identity.”

The Dancing Zombie character might seem to fall under this category, but the Newsworthiness Exception also requires a reasonable relationship between the identity of the identical depicted and the subject matter of the story. Although, theoretically, Michael Jackson’s death (and the speculation of his life as a member of the undead…) might be grounds for finding the necessary “reasonable relationship,” it’s clear the Dancing Zombie was simply a Thriller spoof. And although some states, like New York, do not recognize a cause of action for post-mortem right of publicity, many states do, and Plants vs. Zombies has been released nationwide.

Of course, the Michael Jackson Estate’s complaint also raises the question of how to separate the persona of a celebrity from the persona of the characters they play. Plants vs. Zombies can very strongly be construed to be a likeness not of Michael Jackson, but rather of the character he plays in the Thriller music video. Although in Hoffman v. Capital Cities/ABC, Inc. Dustin Hoffman successfully argued a claim for right of publicity based upon a magazine’s alteration of his character Tootsie, that incident actually involved a photographic depiction of Hoffman as the character. In contrast, the Plants vs. Zombies character doesn’t even bear the slightest physical likeness to MJ — but it is an iconic reference to the Thriller character he played.

Long story short, I think Popcap Games could’ve won this case, although it is by no means guaranteed, and it would be a complex question of law that would take quite a bit of time and legal fees to untangle. So it is no surprise that Popcap backed down and Dancing Zombie was axed, but I’m a bit disappointed in the result. This would have been a great test case for the development (or curtailing) of Right of Publicity law, including the issue of how much protection celebrities have against unauthorized depictions not of themselves, but of the personas they have portrayed.

-Susan