Court: King of Kong’s Billy Mitchell isn’t an exploding, floating cartoon head

If you watched the 2007 documentary The King of Kong or follow the insular world of arcade high score competitions, you know Billy Mitchell as a controversial, bearded braggadocio who sells hot sauce and was the first person to ever play a perfect game of Pac-Man. You probably don't think of Mitchell as a giant, floating head from outer space named Garrett Bobby Ferguson ("GBF") who cries, tries to cheat, and then explodes when he loses a game.

New Jersey Circuit Court Judge Anne E. Thompson is confident you can tell those two descriptions apart. She recently threw out a complaint Mitchell made against Cartoon Network and the makers of Regular Show, where Mitchell argued the character GBF violated his right to publicity by serving as an unauthorized use of his likeness.

To be sure, there are some similarities between Mitchell and the very fictional GBF. They both have similar hairstyles, hair colors, and beards. They're both known largely for doing well at video games. They are both "arrogant yet successful, beloved by fans, and willing to go to great lengths to maintain their titles," as Thompson puts it in her entertaining ruling.

But these slight similarities don't obviate the overwhelming differences between Mitchell and the character. "GBF appears as a non-human creature, a giant floating head with no body from outer space, while [Mitchell] is a human being," Thompson writes in dismissing the case. "And when GBF loses his title, the character literally explodes, unlike [Mitchell]."

There are important differences in GBF's backstory when compared to Mitchell, as well. The "cartoonishly evil" GBF plays the fictional game Broken Bonez—not any game Mitchell is known for—and weepingly lies about his backstory to gain sympathy when he's about to lose. In The King of Kong, when Mitchell's Donkey Kong high score appears in jeopardy, he calmly confronts competitor Steve Weibe about the validity of his equipment and presents his own taped evidence of a higher score.

"While GBF may be a less-than-subtle evocation of [Mitchell], GBF is not a literal representation of him," Thompson continues in her ruling. "While at the highest level of generality, both Plaintiff and GBF compete at video games, this broad commonality does not make GBF and Plaintiff similar enough to make GBF non-transformative."

Thompson cites a few other cases where the use of a celebrity's image wasn't so transformative. No Doubt singer Gwen Stefani won a lawsuit against Activision when a Guitar Hero game let players use a Stefani avatar without her permission. And pro football players won the right to control the use of their likenesses in video games in a lawsuit against EA.

But Thompson says this case is more similar to that of a DC Comics story in which musicians Johnny and Edgar Winter were transformed into Johnny and Edgar Autumn, "two half-man, half-worm creatures, both with long white hair and albino features." In both those cases, there's little chance the audience will be confused over whether the fictional depiction is supposed to be real, and no chance the fictional version could serve as a valid substitute for seeing or hearing about the real celebrity.

So the next time you think of Billy Mitchell, remember that he is not the floating, alien head that you might have seen explode in a cartoon. He is a real man who is very good at video games. We hope this clears things up.