Leggo My Likeness, Part Four

by Greenberg Glusker Fields Claman & Machtinger LLP
Contact

There are so many fun things you can do with celebrities.  In addition to the traditional things like writing books about them, you can also use their catchphrases to make greeting cards; make movies about them using puppets; or even use claymation television to have them fight each other to the death.  But what about including digital representations of them in a video game?

A new case reinforces the holding of a previous case which stands for the proposition that you can’t put celebrities in a video game and then have them do exactly what they normally do in real life.  (For example, a game like “Lindsay Lohan:  Escape from Rehab” simply would not work).

Unfortunately, the case also sets a bad new precedent.

The case in question is called Hart v. Electronic Arts and represents a dangerously subtle evolution in right of publicity law.  In a 2-to-1 decision, a three judge panel ruled that various NCAA Football games, made by Electronic Arts (EA), did not “sufficiently transform” the identity of a college football player named Ryan Hart to escape his claim that EA violated his right of publicity.

At first blush, it seems that the 3rd Circuit simply copied the “transformative use test” used by the 9th Circuit. Upon closer inspection, however, it becomes apparent that the 3rd Circuit took the analysis one step further.

The majority began its analysis by reasoning that “[t]he digital Ryan Hart does what the actual Ryan Hart did while at Rutgers: he plays college football, in digital recreations of college football stadiums, filled with all the trappings of a college football game.”  The majority opinion then chastised EA for seeking to increase profits by capitalizing “on the respective fan bases for the various teams and players” by creating “a realistic depiction of college football for the users.”  However, as the dissenting judge recognized, the inclusion of realistic player likenesses to increase profits should have nothing to do with First Amendment protection.  In fact, by making such a distinction, the result is a “medium-specific metric that provides less protection to video games than other expressive works.”

In his dissenting opinion, Judge Thomas Ambro argued that EA’s use of real people as “characters” in its sports games should be treated the same way as portrayals of individuals (fictional or nonfictional) in movies and books.  (After all, who would want to play Tim Tebow in a football game if you couldn’t have him get down on one knee and start praying?)  Along these lines, when an author writes a historical novel, biography, or other book inspired by or involving famous people, the First Amendment protects the author’s right to realistically portray those people.  The same protection applies to filmmakers.  When Oliver Stone made the biographical film “W,” about former President George W. Bush, an obvious goal of the film was to have Josh Brolin’s portrayal of George W. Bush as realistic as possible to increase the likelihood of satisfied movie-goers.  (Naturally, this required pronouncing the word nuclear “nuke-ya-lure,” and including lines like “Whose job is it, to find these damn weapons?” and “I believe God wants me to be president!”)

To be clear, Judge Ambro does not suggest that the First Amendment should protect all digital portrayals of real people, but simply those in which the likeness, as included in the creative work, has been transformed into something more or different than it was before.  This is the test used by the 9th Circuit.  It is also the test articulated by the majority opinion.

Why, then, did the majority end up with a different conclusion than the dissent?

In a footnote to his dissenting opinion, Judge Ambro observes that when the transformative use test was originally developed, California’s Supreme Court borrowed the concept from the “purpose and character of the use” factor relevant to a copyright fair use defense.  In Judge Ambro’s view, the majority opinion permitted “another fair use factor to creep into their transformative analysis.”  Specifically, he observes that the majority also considered the fourth fair use factor, i.e., “the effect of the use upon the potential market for or value of the copyrighted work.”  Judge Ambro concludes his footnote by pointing out that the California Supreme Court expressly excluded this factor when it originally developed the transformative use test in the famous Three Stooges Case.

Yet, the problem remains; an uninvited fair use factor regarding marketability which has no business in a transformative use analysis.  At least in the 3rd Circuit.

In the meantime, video game developers would do well to heed the message in this case:  It is risky to include super-realistic, digital representations of celebrities or athletes in a video game engaging in their normal behavior.  The safest thing to do is change the celebrity’s actual appearance, behavior, and context in which the celebrity appears.  Changing just one of these things—e.g., context—may not be enough.

For example, in the No Doubt case, simply putting a rock band into a fanciful context like outer space did not render the use of the band’s likeness transformative because the band still looked like the band and still did all the same things the band normally did.  By comparison, Kirby v. Sega taught us that the transformative test is satisfied if you give a celebrity a new name, a new appearance, and the lovable story of having been “dispatched to investigate an invasion of Earth by dance-loving aliens who shoot earthlings with ray guns, causing them to dance uncontrollably.”

In the end, what bothers me most about the Hart v. Electronics Arts opinion is a throw-away point raised by an amicus brief.  The section of the brief highlighted by the court reads:

“Under [EA’s] application of the transformative test, presumably no infringement would be found if individuals such as the Dalai Lama and the Pope were placed within a violent ‘shoot-em-up’ game, so long as the game included a ‘mechanism’ by which the user could manipulate their characteristics.”

Why did the court highlight this point?  It seems to imply that a video game cannot realistically depict celebrities in any context, even if their behavior is abnormal or uncharacteristic.  Although the court did not expressly make such a statement, the “concern” it evinced is distressing.

I suppose that if anything is clear, it’s that these judges need to start playing more video games.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Greenberg Glusker Fields Claman & Machtinger LLP | Attorney Advertising

Written by:

Greenberg Glusker Fields Claman & Machtinger LLP
Contact
more
less

Greenberg Glusker Fields Claman & Machtinger LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.