In 2009, the musical group “No Doubt”, sued video game giant Activision after learning that its video game "Band Hero" allowed gamers to access avatars of the band members to perform other groups’ music. According to a Billboard.biz article, the lawsuit claimed that the ability to manipulate the group’s avatars equated into turning the band "into a virtual karaoke circus act."
Most recently, a Superior Court Judge rejected a motion by Activision to dismiss various claims ranging from fraud to breach of contract. Now it looks as if the case will be heard in front of a jury at some point later in the year.
In addition to the No Doubt/Activision suit, another legal battle is already underway involving former NCAA athletes, the NCAA and Electronic Arts. The National Collegiate Athletic Association is accused of violating U.S. antitrust law by conspiring to force students to sign away their ability to profit commercially from playing college sports.
EA originally attempted to be dismissed as a party to the suit, but U.S. District Judge Claudia Wilken in Oakland, California allowed the plaintiffs to pursue antitrust claims against EA, saying:
"The licensing agreements can fairly be read to evidence a 'meeting of the minds' between EA and the other defendants not to compensate former student-athletes, where such a contract would interfere with the student-athletes' existing agreements with the NCAA. Further, the agreements give broad authority to the (marketing company) and NCAA to inspect EA's financial records related to the products, allowing them to see that payments were almost never made to former student-athletes."
In addition to the antitrust matter, the suit also claims that the NCAA and EA improperly licensed and used players’ likenesses in violation of their right of publicity.
In both the No Doubt and NCAA cases, the main arguments brought forward by the defendants is whether the video games, which could be deemed a form of expression, could be considered a "transformative use" of the musicians’ and athletes’ images. Transformative use of expression was clarified in the case of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994), as being a form of expression that “adds something new, with a further purpose or different character, altering [an original creative work] with new expression, meaning, or message”. A transformative use of certain likenesses found in video games may fall under First Amendment protection. The California Appeals Court has already declared that Activision's use of No Doubt’s likenesses isn't sufficiently transformative, finding that the images in the game were nothing "more than literal, fungible reproductions of their likenesses."
In Canada, the protection of personality rights would be argued under the common law tort of appropriation of personality. This allows any individual to control the commercial use of his or her name, image, voice and likeness. A good summary of this particular tort can be found in the IPilogue article by Anna Shahid entitled, “A short overview on the tort of appropriation of personality”.
It will be interesting to follow the NCAA and No Doubt cases to see where American courts will go when examining the use of likenesses in video games. This will surely clarify how licensed avatars can be used going forward - no doubt.