Old Blood and Guts and Litigation [UPDATED]

|The Volokh Conspiracy |

Lt. Gen. George S. Patton Jr., 1943
Lt. Gen. George S. Patton Jr., 1943

The alleged owners of George Patton's right of publicity are suing Maximum Video Games for using Patton's identity in HISTORY® Legends of War: Patton. This is similar to the Manuel Noriega video-game lawsuit, which a trial court recently rejected, but here—for whatever it's worth—Patton is a central figure in the game, rather than a peripheral one.

I think that, given the Supreme Court's recent ruling that video games are fully protected, a video game featuring a historical figure should be just as constitutionally protected as an unauthorized biography of the historical figure, or as a fiction movie in which the figure plays a major rule (think "Midnight in Paris," but even more focused on a particular historical character, or Steve Martin's play "Picasso at the Lapin Agile"). But the law is quite uncertain here. [UPDATE: On reflection, and prompted by a comment from santamonica812, I now think that defendants have a very strong argument under California law that video games just aren't covered by the relevant statute.]

First, a bit of background. The "right of publicity" was a judge-made tort, though it has been codified in some states (including California, where the suit has been brought). Here's the relevant California text, as applicable to dead celebrities:

  1. "Any person who uses a deceased personality's name, voice, signature, photograph, or likeness,"
  2. "in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services,"
  3. except in "a play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, work of political or newsworthy value, or an advertisement or commercial announcement for any of these works" … "if it is fictional or nonfictional entertainment, or a dramatic, literary, or musical work,"
  4. without the consent of the person's heirs or assignees
  5. shall be liable for damages, profits, possibly punitive damages, and attorney fees.

The provision is narrower than for live celebrities, because it excludes fiction, songs, paintings and some other categories of entertainment. Still, it covers other kinds of work that would normally be constitutionally protected, such as T-shirts, mass-produced sculptures, and, possibly, Web resources. [UPDATE: I at first thought that video games wouldn't be exempted by the provision, because I read "audiovisual work" to mean just movies and the like. But in the one area of law where "audiovisual work" is defined, copyright law, "audiovisual work" does include videogames.]

Courts have generally held that the First Amendment imposes constraints on right of publicity law, and those constraints would apply equally to living celebrities and dead ones. The trouble is that different courts have drawn different lines (except as to use in outright commercial advertising for non-speech products, where courts generally agree the right of publicity is constitutional, and as to the taking of an entertainer's entire act, as to which the Supreme Court has held the right of publicity is constitutional). Roughly speaking, there is authority for at least five different rules (with "protection" for a certain use meaning that the use can't lead to liability under the right of publicity):

  1. Broad protection (in cases such as C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media (8th Cir. 2007)), under which the right of publicity is basically applicable only to commercial advertising and the use of an entire act.
  2. Protection only for favored media, and some political uses (see the Restatement of Unfair Competition), under which use in "news, entertainment, and creative works," including fiction, but use on "merchandising"—such as posters, T-shirts, and the like—is not allowed (except perhaps for some parody and political use).
  3. Protection for "transformative" works (see some California cases)—meaning works in which "the celebrity likeness is one of the 'raw materials' from which an original work is synthesized"—but uses in which "the depiction or imitation of the celebrity is the very sum and substance of the work in question" are not allowed.
  4. Protection for "transformative" uses of a person's name, photograph, and the like (see other California cases)—meaning uses in which the person's attributes are somehow distorted or otherwise changed—but uses in which the person's attributes are used without material distortion are not allowed, even when the defendant's work contains much more than this person's attributes.
  5. Protection for uses that have a "predominant purpose" that is "expressive" (that's the Missouri Tony Twist case, Doe v. TCI) but uses that have a predominantly "commercial" purpose are not allowed—an especially mystifying test, I think, given how many uses in our free-market system have intertwined expressive and commercial purposes.

The Third and Ninth Circuits have recently basically adopted the transformative-use test, in holding that Electronic Arts' "NCAA Football" video games infringe the rights of the players whose identity attributes are used in the videos. And that's good news for Patton's lawsuit, of course if the California statute is indeed read to cover video games. Consider the heart of the Ninth Circuit's conclusion in the Keller v. Electronic Arts case that the use of the football players' identities in the video game was not a "transformative use" (paragraph breaks added):

EA's use of Keller's likeness does not contain significant transformative elements such that EA is entitled to the defense as a matter of law. The facts of No Doubt [an earlier California case] are very similar to those here. EA is alleged to have replicated Keller's physical characteristics in NCAA Football, just as the members of No Doubt are realistically portrayed in Band Hero.

Here, as in Band Hero, users manipulate the characters in the performance of the same activity for which they are known in real life—playing football in this case, and performing in a rock band in Band Hero. The context in which the activity occurs is also similarly realistic—real venues in Band Hero and realistic depictions of actual football stadiums in NCAA Football. As the district court found, Keller is represented as "what he was: the starting quarterback for Arizona State" and Nebraska, and "the game's setting is identical to where the public found [Keller] during his collegiate career: on the football field."

It appears that the references to Patton in the game and its packaging are likewise realistic, rather than (to quote the approach adopted by the Ninth Circuit) depicting him as a "fanciful, creative character[]" or an "entirely new character." I haven't played the game, and maybe in the game there are many more transformative elements to his character (remember, the Ninth Circuit cares about changes to the character, not the broader plot line of the game as a whole, which would be considered under the transformative-work test rather than the transformative-use test). But at the very least it sounds like the Patton plaintiff has a credible claim.

Now if I were Maximum Family Games, I would argue that there ought to be a different rule for uses that refer to important government officials, rather than just athletes or entertainers. The Ninth Circuit did say in Keller that "we reserve the question of whether the First Amendment furnishes a defense other than those the parties raise," so maybe there might be some such "use of a government figure" defense, even in the absence of a "transformative use." And the Ninth Circuit might indeed be open to recognizing a still broader defense, such as the "broad protection" approach. The quote I just gave cites to a passage in Hilton v. Hallmark Cards, which says,

We address only defenses that Hallmark raised, and leave for another day the question of whether the First Amendment furnishes a defense to misappropriation of publicity that is broader than the transformative use or public interest defenses.

Still, the Patton plaintiff's claim is surprisingly strong, given the Keller precedent.

And, as I noted earlier, this is not limited to video games. Keller began with an acknowledgment that video games are fully protected, and stressed that its analysis applies to "expressive works" generally:

Video games are entitled to the full protections of the First Amendment, because "[l]ike the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world)." Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729, 2733 (2011). Such rights are not absolute, and states may recognize the right of publicity to a degree consistent with the First Amendment. Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 574-75 (1977) [a TV news case -EV]. In this case, we must balance the right of publicity of a former college football player against the asserted First Amendment right of a video game developer to use his likeness in its expressive works.

So celebrities could similarly sue over uses of their names, photographs, or likenesses in movies, in graphic novels, in ordinary novels, in songs, and elsewhere (recall that the California living celebrities' right of publicity doesn't exclude such works of fiction). And even the heirs of dead celebrities could sue over a wide range of references outside the statutorily favored medias. An unjustifiable situation, I think, which poses serious risks for speakers in fields far outside video games—but, unfortunately the situation we find ourselves in, given recent cases such as Keller and Doe v. TCI.

[UPDATE: So if the California statute is read as covering videogames, on the theory that "audiovisual works" is limited to traditional films and the like, and doesn't include videogames, the defendants' First Amendment argument would be quite dicey. But if the exception for, among other things, "audiovisual works" that are "fictional or nonfictional entertainment," is indeed broad enough to cover video games, then the defendants would win under the statute, with no need to raise the First Amendment defense.]

For a 2003 article of mine on the subject, see here; for my amicus brief in the Tony Twist case, see here.

Special bonus for choice-of-law buffs: The lawsuit claims that Gen. Patton was domiciled in California at the time of his death in Germany in 1945, which is to say that California was his formal state of residence even though he had lived in many places as a result of his military career. If that's so, then California law would apply, and his right of publicity would still endure for 70 years after his death (i.e., until next year). But if Gen. Patton was domiciled elsewhere, then the law of that jurisdiction would apply (see the Lady Diana case), and many jurisdictions either don't recognize post-mortem rights of publicity, or have them last for a shorter time than California does. If any of you know whether Patton deliberately decided to live for the indefinite future in some place other than California (which might be shown, for instance, by voting in the elections of some other place, or expressing an intent to return to some other place after the war rather than to California), please let me know.

UPDATE: Commenter Bob from Ohio notes that there's good reason to think that Gen. Patton was domiciled in Massachusetts when he died, and that apparently Massachusetts doesn't recognize a postmortem right of publicity (though there is a pending bill that passed the Massachusetts Senate that would recognize it).

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