Block Those Cyber-Boobs! – Flasher Sues Game Makers

Illustration By Doug Potter

"The Guy Game puts you in the world's wildest party spot for the steamiest Spring Break action ever!" boasts the Web site for the video game created by Austin-based Topheavy Studios. According to one person close to the "action," the game is not just "steamy," but pornographic. According to a lawsuit filed late last year – on behalf of an unidentified Austin woman whose likeness (including her surgically enhanced bosom) appears in the game – The Guy Game is actually kiddie porn. In March 2003, when the woman consented to be videotaped for use in the interactive game, she was actually two months shy of turning 18, court filings explain – and not 21, as she had led the game makers to believe.

The woman – known legally as "Jane Doe" – argues that The Guy Game, technically, is illegal child pornography. That's just one of the allegations she's leveled in a lawsuit seeking unspecified monetary damages from Topheavy, the Gathering of Developers (which published the game), and Microsoft and Sony, the companies behind the Xbox and PlayStation2 (on which the game is played). The suit charges that by virtue of the defendants' "misconduct," Doe is now associated with the game's "sexual" and sexually "suggestive" content, and as a result "has suffered great humiliation, embarrassment, shame, pain, suffering, and mental anguish for which she now seeks damages."

The woman, now 20, may be embarrassed, counters Topheavy's lawyers, but she knowingly chose to participate in the game, lied about her age to do so, and repeatedly flashed her breasts in public in front of a large group of people. Mere display of her breasts does not mean the footage is pornographic, Topheavy argues, and the game makers should not be penalized simply because Doe has flasher's remorse. The law is "crystal clear" that, regardless of her age, her consent to participate constitutes a "complete bar" to all her legal claims.

However juvenile the video product, The Guy Game lawsuit raises serious questions about First Amendment freedoms, contract law, and the potential use of "child porn" and minor status claims as legal weapons.

The Guy Game, which debuted last August, is a cross between a Jeopardy!-style trivia game and a Girls Gone Wild video – players match wits with the videotaped women in an attempt to score enough points to "unlock" video clips of coeds flashing their boobs. The footage used was filmed during spring break on South Padre Island in 2003. The women volunteered to be videotaped while answering trivia questions, competing in the "Hottie Challenge" – i.e., jumping rope, or bouncing on large rubber balls – and flashing their breasts. It was hardly a private affair: The game team was permitted by the city of South Padre Island to set up a large outdoor stage, and they employed off-duty South Padre police to monitor the crowd.

According to court filings, Doe was waiting in line to enter Tequila Frog's bar on March 11, 2003, when she saw the nearby stage. Armed with a fake California ID she'd bought in Dallas and a "newly enhanced buxom" (as misnamed in court papers, presumably for "bosom") given to her by her parents as a Christmas present the year before, "she signed a release to become a video game star and lied about her age, her residence, and her level of education," Topheavy claims. She was one of about 150 women who competed in the event, one of 60 whose footage is included in the game. It wasn't until December of 2004 – almost two years after the footage was shot – that Doe filed her lawsuit, seeking a temporary restraining order to bar further sale of the game.

Doe alleges that by virtue of the company's negligence, Topheavy invaded her privacy and inflicted emotional distress. By failing to discover that she was under 18, she claims, Topheavy did not have valid, legal consent to videotape her or to use the footage in a commercial enterprise. As a result, Doe argues, Topheavy created a work of child pornography, in violation of the Texas Penal Code. Doe may have signed a "Model/Talent" release form (legally, a binding contract), but by law "a contract between an adult and a minor … is voidable at the option of the minor," wrote her attorney, Jim McClendon. "[Doe] has elected to void the alleged release." She also requested the court allow her to use the "Doe" pseudonym in order to protect her from the "highly shameful, embarrassing, and humiliating nature" of the case. "Plaintiff … wishes to attend college, develop her career, and be active in her community and church," reads the lawsuit. "She wants to keep this lawsuit from hindering her ability to engage in this activity and achieve these goals."

Travis Co. District Judge Suzanne Covington granted the restraining order and, in January, granted a subsequent request for a temporary injunction against Topheavy. As a result, copies of The Guy Game have been removed from store shelves.

On Feb. 9, Topheavy appealed to the 3rd Court of Appeals. Doe's fraudulent misrepresentation of her age prevents her from withdrawing her consent, argues Topheavy attorney Laura Stapleton, which in turn bars all of her other legal claims. "[Doe] entered the contest knowingly [and] with an obvious desire to gain the attention of the crowd while being duplicitous with [Topheavy] to gain entry to the contest," she wrote. "Because [she] was acting as an adult and telling others that she was an adult, it was reasonable for Topheavy to believe she was an adult and [to] treat her like an adult, and the law should follow suit by holding her responsible for her actions, like an adult."

Topheavy points out that under oath at the injunction hearing Doe admitted that she was a willing participant, that she lied about her age, and that she knew she would be asked to flash her breasts in front of a large group of people – some of whom were using their own video and still cameras to capture the event. Those admissions, Stapleton argues, bar her claims of invalid consent, invasion of privacy, and negligence. Under the doctrine of "unclean hands," Doe should not benefit from her own fraudulent, and ultimately illegal, conduct, Stapleton wrote. "If contracts were not enforceable against those who lied about their age, such dishonest minors (perhaps in concert with their litigious-minded parents) could freely lie about their age to avail themselves of opportunities they would not otherwise have." UT law professor Scot Powe says that while Texas' child porn laws are "just acid strict," he suspects that the case will ultimately turn on the question of Doe's fraud. If a person is "double-dealing," he said, the law "won't help you."

Interestingly, the Entertainment Software Rating Board, which reviews every new game, gave The Guy Game an "M" rating – meaning, the game is suitable for "Mature" users over 17 (the equivalent of an "R" movie rating) – instead of an "Adults Only," rating, reserved for games that include "graphic depictions or sex and/or violence."

Neither Stapleton nor McClendon would comment on the facts of the case, and McClendon asked that the Chronicle refrain from writing about it at all. The case, he said, "involves a young lady who feels wronged and [who] would just like her relief without any publicity."

At press time, the case is pending before the 3rd Court.