Remember "Lady Miss Kier" (real name Kierin Kirby), lead singer of the band "Deee-Lite"? Deee-Lite had a big hit in 1990 with the video for their song Groove is in the Heart, which the California Court of Appeal today helpfully described as follows: "The song's music video, which received extensive airplay on MTV, features band members clad in 'funky retro outfits, vivid graphics, groovy dance moves, a futuristic setting and an overall party feel.'" Kierin Kirby v. Sega of America, Inc. (2nd Dist., Div. 8, Sep. 25, 2006) No. B183820 (unpublished).
In July 2000, a representative of Sega Japan contacted Kirby and told her that Sega "was considering using one of several music videos or songs, including Groove is in the Heart, to promote" a video game called "Space Channel 5" or "SC5" in England and possibly Europe. Kirby was not interested and declined to cut a deal or give Sega permission to use her songs, likeness, or anything else.
Subsequently, Kirby discovered that Sega had released the game and that it included a dancing female character named "Ulala" who Kirby felt resembled her Lady Miss Kier character in several respects. Among other "signature" characteristics, Lady Miss Kier was known for saying "ooh la la," as she does while introducing herself in the Groove is in the Heart video. Kirby thought Sega's use of "Ulala" was an obvious rip-off of her signature "ooh la la," and noted several other apparent similarities between Ulala and Lady Miss Kier.
Kirby filed this lawsuit against Sega in Los Angeles in April 2003, asserting several causes of action, including one for misappropriation of likeness under Cal. Civil Code section 3344.
Unfortunately for Kirby, Sega was able to show that the game SC5, including the Ulala character, had been created and released in Japan between 1997 and 1999 (years before Sega contacted Kirby), and that the Japanese creators of Ulala -- who created her name, look and dance moves -- had never even heard of Deee-Lite, Lady Miss Kier, or Groove is in the Heart at the time they created Ulala.
Worse for Kirby, under the First Amendment and the California Constitution's right of free expression, "[n]othwithstanding certain similarities, Ulala is more than a mere likeness or literal depiction of Kirby. Ulala contains sufficient expressive content to constitute a 'transformative work' under the test articulated by the [California] Supreme Court" in Winter v. DC Comics (2003) 30 Cal.4th 881 and Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387. The trial court granted summary judgment to defendants.
Still worse for Kirby, Civil Code section 3344, under which she sued (in part), states that "The prevailing party in any action under this section shall be entitled to attorney's fees and costs." Cal. Civ. Code Sec. 3344(a). Defendants requested these "mandatory" fees in the amount of $763,000, which the trial court reduced to an award of approximately $608,000. The Court of Appeal affirmed. Recognizing that this is a harsh result, the Court noted that the Legislature had unambiguously made the fee provision mandatory. "Whether the course is sound is not for us to say. (Citation) This is the course the Legislature has chosen and, until that body changes course, we must enforce the rule. The fee award was proper."
And worst of all, the Court of Appeal determined that Civil Code section 3344(a) also entitles the prevailing party to attorney's fees and costs on appeal, and remanded the case to the trial court to determine the amount of additional fees and costs to be awarded against Kirby for appealling the decision.
I'll bet Ms. Kirby (and other celebrities) will think twice before suing for "misappropriation of likeness" in California again anytime soon.
Comments (< $MTEntryCommentCount$>)
yeah lady miss kier sure learned her lesson, john, for not selling out to some huge bucks corporation. you can't prove that someone was not influenced by her look and sound, as 'groove is in the heart' was a superhuge hit. people just lie. more likely the court system wants to put l.m.k. in the poorhouse because she is one of only a small handful of artists who have the balls to stand up to the bush administration against the war and against american supergreed.
and she fucking rocks.
Posted by Jane | < $MTCommentDate$>
Posted on October 2, 2006 16:32
Wow...Jane...There's NOTHING there about the Bush administration
THis is just a case of a woman with a really big head....
Posted by Trent | < $MTCommentDate$>
Posted on October 29, 2006 14:39
she doesnt have a big head. if you saw the obviouse proof that sega ripped her off on her web site you would only know that sega was lying about everything check it out
Posted by fuxia | < $MTCommentDate$>
Posted on November 27, 2006 19:53
Too bad she didn't have the financial means of say, the Rolling Stones.
Sounds like deeper pockets could have produced a victory.
Justice is not always blind.
Posted by Zack | < $MTCommentDate$>
Posted on December 26, 2006 18:13
i would totally shag her rotten. i would.
Posted by noname | < $MTCommentDate$>
Posted on March 3, 2007 23:48
'noname' , you are disgusting.
( and it is I that would totally shag her rotten - in fact I am devising a video game in which a character very similar to myself is 'shagging rotten' a character not unlike her)
Posted by greenarrow | < $MTCommentDate$>
Posted on March 9, 2007 12:48
This case is a prime example of why lawyers are evil as well as capitlism. If you have enough money you can legally steal people intellectual property. I have played Space Channel 5, and listened to Dee-Lite. When I first played it I thought that they sponsered Lady Miss Kier, or that she was part of the game. Saying that they didn't know about her song is a complete lie and they know it. The judge, lawyers and SEGA should be completely appauled with themselves for leting it happen and even worse for forcing her to pay legal fees. This is big bank take little bank not justice. BS!
Posted by Nonofyourbusines | < $MTCommentDate$>
Posted on May 23, 2007 00:12