Herrig claims Mortal Kombat character is based on her

Does UFC Fighter Felice Herrig have a legitimate claim against the new Mortal Kombat video game?  Video game web site Kotaku reported the similarities between the UFC strawweight and Cassie Cage, a character on the Mortal Kombat video game.

Although Herrig has not indicated that she may take action, does she have a claim?  Maybe.  In fact, she questioned this 3 months ago in Instagram and with more promos coming out featuring Cage, Herrig is becoming more suspicious.  The other question one might ask is whether the UFC also has a claim against Warner Brothers Interactive, the publishers of the video game.  Although we have not looked at Herrig’s contract, we assume that it is a standard UFC fighter agreement which would include a right of publicity clause which would grant the UFC the exclusive right to use her likeness.  If an entity, like the makers of Mortal Kombat, were to do this without the permission of the UFC, you might conclude that they would have a viable legal claim.

Based on the compilation produced by Herrig, one can make a valid argument that the character, Cassie Cage, looks similar to Herrig.  If Herrig and/or the UFC were to sue, it would have several causes of actions from which it could choose.

First, there are state laws of right of publicity which would be applicable here.  Most of these laws protect a person’s right in his or her name and likeness.  Likeness is the most difficult to define as there are multiple definitions of the term but in general Courts have used the “readily identifiable” test to conclude that drawings, if sufficiently detailed, can constitute a “likeness.”  In a famous case, the Court ruled a robot, if sufficiently detailed, could be a likeness.  That case involved TV letter-turner Vanna White as White sued Samsung for a television ad that depicted a robot doing a similar act of turning letters like the game show hostess.

One of the threshold issues to constitute a violation of one’s right of publicity is whether the offending party “knowingly” used another’s likeness without prior consent.  If there was no consent, the party violating the right of publicity shall be liable for damages.

In Herrig’s case, one might conclude that damages might include a portion of the sales of the new Mortal Kombat video game.

There are four steps under common law which courts seek out in determining whether there is a violation of one’s Right of Publicity:

• The use of the identity;
• Appropriating the use to its advantage, commercially;
• Lack of consent; and
• The use results in injury (e.g., here Herrig was not paid for the use of her likeness for the character).

Under Federal law, there is the Lanham Act in which Herrig or the UFC could argue that there was a “likelihood of confusion as to whether Herrig was endorsing Mortal Kombat.” Since Mortal Kombat did not ask Herrig if they could use her likeness, gamers may think that Herrig took part in the video game.

Obviously the makers of Mortal Kombat would claim that the character is not based on Herrig, or it is a compilation of various female characters and not necessarily Herrig.

Payout Perspective:

Whether or not Herrig or the UFC files a lawsuit is solely speculation.  A hurdle not mentioned above is the strength of Herrig’s mark.  Basically, how well-known is Herrig?  This is debatable although Herrig might cite to her many followers on social media as evidence of her notoriety.  We haven’t heard from Warner Bros. yet but expect a denial that the character was based on Herrig without her consent.  A lawsuit would be a long process which would be costly.  So, it would be up to Herrig or the UFC whether they think its worth it.

This publicity may help Herrig’s upcoming fight this Saturday as well as the debut of the new Mortal Kombat video game.

Of course, if you want more hype for the video game, you should watch this pre-Super Bowl 49 video of Marshawn Lynch and Rob Gronkowski playing the game.