When a gaming actress’ images leak, who should take the legal blame?
Nde shots of Ellen Page from Beyond: Two Souls introduce many legal questions.
When nde images of Jodie Holmes, actress Ellen Page's character from Beyond: Two Souls, began appearing on the Internet a few weeks ago (courtesy of a repositioned shower-scene camera running on debug hardware) we thought the story was a little too tabloidy to cover. This kind of embarrassing, tawdry celebrity gossip is pretty common in the entertainment industry, even if it's relatively rare in video games particularly. Scandals revolving around supposedly inaccessible adult content in games aren't completely unheard of, though; remember GTA: San Andreas' Hot Coffee?
But when reports surfaced earlier this week that Sony was making vague legal threats in an effort to remove those images from the Internet, our news ears started perking up a little.
Nordic entertainment site Eskimo Press was the first to report that Sony Computer Entertainment Europe asked them to take down the leaked images, citing unspecified "legal reasons" for the request. This action came despite the fact that Eskimo Press merely linked to the images on another server rather than hosting them itself. Culture site Gaming Blend said it received a similar request from Sony Computer Entertainment America, which went so far as to request that the original story be taken down entirely.
"The images are from an illegally hacked console and are very damaging for Ellen Page," the rep reportedly told Gaming Blend. "It’s not actually her body. I would really appreciate if you can take the story down to end the cycle of discussion around this."
These Sony reps' casual citations of "legal" and "illegal" got us wondering whether there was actually any law or contract broken here, either on the part of the source that leaked the images, the press that reported on it, or even the companies that made the game.
First up, there's the still-anonymous person who leaked the images. To start, talk of a "hacked" console being used to generate the images seems inaccurate. The images appear to come from a "debug" PS3, a special console designed for developers and press to run and potentially modify non-finalized code. The console and game software likely didn't have to be modified in any way to access the displayed "QA Mode" that made the new camera angles possible. Any legal issues with the shots would likely hinge on the language included in any contract the leaker may or may not have signed to get access to the debug hardware and a "debug" copy of the game. But it's not clear what, if any, such agreements the leaker may have been party to. Sony and Quantic Dream have not responded to requests for comment on this story.
Now that the images are out there on the Internet, there's probably little Sony can do to legally prevent people from using and discussing them, at least under US law. "I would think first amendment protection in the US would allow them to be published," Editor in Chief of the Law of the Game blogger Mark Methenitis told Ars. "Consider how much the press has published about far more sensitive topics dug up by more dubious means. Of course, Sony has a slightly more unusual relationship with the game press, and that relationship may be leveraged to have many of these pictures removed. I'd certainly be interested to see the requests they're sending out, as that may give a clearer picture of what their thinking is."
It's worth pointing out that only two sites so far have publicized Sony's request to take down links to the images being discussed here. That's out of dozens that have written about the issue. This could mean that the "takedown" effort, such as it is, has been more of a light, scattershot attempt rather than a sweeping effort so far. In any case, there's a bit of a Streisand effect already at work here, with posters at reddit and elsewhere working to call wider attention to the images now that Sony is attempting to block them.
What about Sony and Quantic Dream's possible legal liability in creating the 3D model that actually shows up in these shots? Clauses disallowing nudity are pretty common in acting contracts, and they could well be in play for Page's work in Beyond. In the movies, these clauses are usually pretty easy to enforce: either the studio released footage or they didn't. In this case, Quantic Dream is in a sort of gray area. It seems to have created a full model of Page's character, but the company made it impossible to view it from the most compromising angles within the course of normal gameplay. Are they liable simply because someone found a way to view that model in an unintended way?
"My guess is [Page's contract would contain] a complete bar [on nudity], in which case including the model in a way that can be accessed at all probably trips it," Methenitis said. "Now, if there was a EULA [end-user licensing agreement], and the user was violating it, it becomes a question of whether the user who created the images by violating the EULA could also be brought into the case and how the liability would fall between Sony/Quantic Dream and the user."
Interestingly, Quantic Dream may have put itself at greater risk here by deciding to go with real-time, in-engine scenes rather than using more heavily controlled pre-rendered footage. "If that model's use had been relegated to rendered cut scenes, rather than just freezing the camera, and was therefore not needed to be included in the final game, this could have been avoided, short of someone stealing the model from QD's internal storage," Methenitis pointed out. Of course, using pre-rendered shots could have impacted the minimal interaction players have on these scenes in question.
The difference between a 3D model and an actual image also introduces another potential legal wrinkle in any case Page might have against Sony and Quantic Dream. The developer could argue that the images show a fictional character that happens to look like Page, which isn't precisely the same as, say, a movie that included direct images of the actress. This might be a thin technicality considering that the character was directly modeled off of motion capture data provided by Page, but court cases have hinged on smaller issues.
Whether that argument flies might depend on the state that eventually takes up the case. "California has pretty broadly interpreted the right of publicity in the past," Methenitis said. "Robots bearing no resemblance to the celebrity put in a situation that suggests the celebrity, for example, [could be in breach]. So if you could make a right of publicity case, then I don't see why this 3D model wouldn't get there. It would certainly be interesting, though, to see arguments made as to the accuracy of the model, which I imagine Sony might use to try to diminish the claim. What a very odd day in court that might be (though I have to imagine it would settle long before it got to that)."
Legal pressure from Page would help explain why Sony has finally decided to start going after press mentions of the images weeks after they first appeared. In any case, it seems that creating a model and trying to hide it through virtual camera trickery might not provide a sufficient legal defense for a game developer. The lesson seems clear: if you want to be safe, smooth out those naughty polygons even if you think no one will ever see them.
