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Tony Basich, Blogger

September 3, 2015

3 Min Read

Video games are expressive works that are entitled to the full protections of the First Amendment.  Game developers should appreciate, however, that those protections are not absolute; they must be balanced against other interests, such as publicity rights, which guard against the misappropriation of names and likenesses.  Indeed, in recent years, publicity rights have repeatedly been held to outweigh First Amendment concerns when individuals were realistically depicted in video games.

To balance the competing interests, most courts have employed what has become known as the “Transformative Use Test”.  As originally framed by the California Supreme Court, the test examines “whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation.”  If it does, the First Amendment prevails; if not, the right of publicity prevails. 

While the language of the California Supreme Court’s opinion suggested that the analysis should look at whether the entire work was transformative, game developers should also know that subsequent cases have instead largely focused on how the individuals’ names and likenesses were used in the work.  For example, No Doubt v. Activision Publishing, Inc., involved a video game featuring computer-generated images of members of the band No Doubt.  Notwithstanding the game’s other creative elements, because the images “perform[ed] rock songs, the same activity by which the band achieved and maintains its fame”, the court determined that the band members’ likenesses had not been transformed “into anything other than exact depictions of No Doubt’s members doing exactly what they do as celebrities.” 

That reasoning was more recently adopted in three cases involving the use of former college and professional football players’ likenesses and biographical information in the NCAA Football and Madden NFL series of video games.  Although the games contained many other creative elements, and even allowed users to alter the football players’ characteristics, the games were still found to have failed the Transformative Use Test because they depicted “characters in the performance of the same activity for which they are known in real life . . . .” 

By contrast, a comic book’s “distorted” depiction of musicians Johnny and Edgar Winter “as villainous half-worm, half-human offspring born from the rape of their mother by a supernatural worm creature that had escaped from a hole in the ground,” was held to be protected under the Transformative Use Test.  And another video game’s “fanciful” portrayal of a pop singer “as a space-age reporter in the 25th century” also was found to be transformative. 

Not surprisingly, focusing on how realistically (or unrealistically) an individual is portrayed in a video game, rather than looking at the transformative elements in the game as a whole, is an approach that has been criticized.  As the dissent in one of the football cases noted:

The logical consequence of the majority view is that all realistic depictions of actual persons, no matter how incidental, are protected by a state law right of publicity regardless of the creative context.  This logic jeopardizes the creative use of historic figures in motion pictures, books, and sound recordings.  Absent the use of actual footage, the motion picture Forrest Gump might as well be just a box of chocolates.  Without its historical characters, Midnight in Paris would be reduced to a pedestrian domestic squabble. 

And while such a “parade of horribles” is commonly used as a rhetorical device in dissenting opinions, none of the decisions has adequately addressed the gist of the concern. 

Nevertheless, unless and until the United States Supreme Court either adopts another analysis to balance the competing interests or applies the Transformative Use Test differently, if game developers want to use someone’s name or likeness in a video game, they should probably depict the person as a “half-worm, half-human”, “25th century reporter”, or in some other “distorted”, “fanciful” manner that is equally removed from reality.

~Tony Basich, Partner at Hogan Lovells

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