Free Speech

Video Game Developers Have First Amendment Right to Base Characters in Part on Real People

So the Third Circuit held yesterday.

|The Volokh Conspiracy |

From yesterday's decision in Hamilton v. Speight (3d Cir.) (nonprecedential), written by Judge Paul Matey and joined by Judges Michael Chagares and Thomas Hardiman:

Lenwood Hamilton is a former professional athlete, entertainer, and motivational speaker…. Gears of War is a video game series in which members of the Delta Squad—including Augustus "Cole Train" Cole—battle "a race of exotic reptilian humanoids" known as the Locust Horde on the planet Sera. A few years ago, Hamilton saw the game for the first time. "Looking at the Augustus Cole character," he felt, "[wa]s like looking in a mirror." So he sued[,] … alleg[ing] that defendants used his likeness in violation of his right of publicity….

Here, no reasonable jury could conclude that Hamilton—whether Lenwood or Hard Rock—is the "sum and substance" of the Augustus Cole character. There are no doubt similarities. Hamilton and Cole have similar skin colors, facial features, hairstyles, builds, and voices. Hamilton played football for the Philadelphia Eagles; Cole once played "thrashball"—a "fictionalized sport that loosely imitates American football"—for a team with that same name. And Gears of War players can dress Cole in a "Superstar Cole" outfit that resembles Hard Rock Hamilton's signature costume.

But other significant differences reveal that Hamilton was, at most, one of the "raw materials from which [Augustus Cole] was synthesized." Hart v. Electronic Arts, Inc. (3d Cir. 2013). In Gears of War, Cole fights a fantastic breed of creatures in a fictional world. Hamilton, of course, does not. Cf. Kirby v. Sega of Am., Inc. (Cal. Ct. App. 2006) (transformative use where musician depicted in video game "as a space-age reporter in the 25th century"). Nor has Hamilton served in the military. Cf. Hart (no transformative use where game depicted "digital [football player] do[ing] what the actual [football player] did while at Rutgers: … play[ing] college football, in digital recreations of college football stadiums, filled with all the trappings of a college football game"); No Doubt v. Activision Publ'g, Inc. (Cal. Ct. App. 2011) (no transformative use where game featured "exact depictions of [band's] members doing exactly what they do as celebrities"—i.e., singing and playing music)…. Cf. Winter v. DC Comics (Cal. 2003) (alleged depiction of musicians Johnny and Edgar Winter as "Johnny and Edgar Autumn" in comic book protected by the First Amendment; though the Autumns shared physical attributes and style of dress with the Winters, the Autumns were "depicted 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"—i.e., were "but cartoon characters … in a larger story, which is itself quite expressive").

{Relying on copyright law principles, Hamilton also argues that the transformative use test does not apply when the work at issue "[is] not a commentary on the person whose likeness [is] used[.]" He is incorrect. See Winter ("Comedy III did not adopt copyright law wholesale…. What matters is whether the work is transformative, not whether it is parody or satire or caricature or serious social commentary or any other specific form of expression." (emphasis added)).

If Hamilton was the inspiration for Cole, the likeness has been "so transformed that it has become primarily the defendant's own expression." The First Amendment therefore bars Hamilton's claims….

As the discussion of Hart reflects, the Third Circuit had held that sports video games in which characters were closely based on real sports figures aren't protected by the First Amendment by right of publicity claims. I think that's mistaken, for reasons I discuss here: Among other things, I think the Hart holding jeopardizes the common and valuable practice of including real people as characters in books, movies, and plays—think Midnight in ParisPicasso at the Lapin Agile, and many more. (Note that, rightly or wrongly, video games are treated as constitutionally equivalent to other speech.)

Still, I think the new Hamilton decision is correct, given Hart: At least when there is something of a fanciful transformation of the character, that use is constitutionally protected. Thanks to the Media Law Resource Center MediaLawDaily newsletter for the pointer.

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  1. I follow the legal arguments but I’m not sure I’m persuaded by them.
    Taking a real person, and modeling a fictional character off of them is how actors in Hollywood earn their money. If you take a full 3D model of Liam Neeson for movie A, and then use it again in movie B, Liam should get paid twice, his likeness is being sold twice. This is true even if Liam isn’t Liam but rather some other random person who’s been modeled into a 3D representation. There’s been movies and TV shows which have used animation and voice actors to pretend to be famous people (usually with a disclaimer that “celebrity voices were impersonated.”)
    I think that’s a misappropriation. It’s differentiated from using actual people in books as incidental characters. Or even in movies, As for example, in Indiana Jones and the Last Crusade, Indy gets Der Fuhrer’s autograph, or in Men in Black, when many celebrities are revealed to be space aliens. Whereas in say a biography of a famous person, the person being impersonated is the integral to the movie, “Straight Outta Compton” is sold because it has NWA as characters. If movie producers don’t have to pay to put celebrities’ likenesses in their products, they can trade on the celebrities’ fame. It’s bad enough we allow digitally-altered political campaign advertising (if you didn’t catch your political opponent saying something unpopular, just edit the recording until you did.)

    1. “I think that’s a misappropriation.”

      Perhaps, but trying to make a copyright claim on it won’t get you there. US copyright law does not include a personal right of publicity nor any other personal image rights.

      1. “Perhaps, but trying to make a copyright claim on it won’t get you there. ”

        No, but making a claim of misappropriation of likeness does.
        Like,say, the one filed by the plaintiff, who had a lawyer who knew that there isn’t a copyright claim here and thus didn’t file a copyright claim. Turns out, the circuit says there isn’t a right of likeness that can survive a first-amendment claim.

        1. Federal law doesn’t recognize a “right of likeness” at all. A few states, including California, have recognized such under state law.

          1. “”Federal law doesn’t recognize a “right of likeness” at all.”

            Depends on what state you happen to be standing in at the time. They got past a motion to dismiss to get to a ruling on the merits, so they must have had some cause of action that was recognized by the court he was in.

          2. MatthewSlyfield: “Misappropriation of likeness” is basically the equivalent of the “right of publicity,” which is recognized by the great majority of states. (There is indeed no federal statutory or common-law right of publicity, though federal courts will apply state right of publicity law in diversity cases, and in some other cases.)

    2. Let’s say you want to make a video game that recasts former Presidents as action heroes.

      So while you change the names, and change some character attributes, and make them into muscular superheroes, your game characters are obvious allusions to and share some characteristics with Jimmy Carter, Bill Clinton, George W. Bush, and Barack Obama.

      It seems to me that so long as the use is transformative and the characters are not direct copies, they shouldn’t be able to sue. To me this is no different than what the novelist Irving Stone used to do.

      1. “Let’s say you want to make a video game that recasts former Presidents as action heroes.”

        Stick to the dead ones, since they don’t have rights you can infringe.

        1. But that’s not necessarily true; in some states rights of publicity survive death.

          1. Operate your business in one that doesn’t.

            1. James Pollock: Can you explain a bit about how you so confidently say that? You seem to be assuming that courts would apply the law of the state in which you operate your business — why do you say so? And if you make a movie, wouldn’t you want it to be shown in all states?

              I mean, you started by saying, with great confidence, “Stick to the dead ones, since they don’t have rights you can infringe.” Now it appears that this is mistaken under the law of many states — might you be mistaken in your follow-up analysis as well?

              1. “You seem to be assuming that courts would apply the law of the state in which you operate your business — why do you say so? ”

                Review the chapter on personal jurisdiction from your civil procedure class. The state you operate in is the one that has jurisdiction to hear cases involving you.

                ” if you make a movie, wouldn’t you want it to be shown in all states?”

                The business that makes a movie isn’t the one that distributes it or shows it.

                1. James Pollock: The state you operate in is indeed one of the states that has jurisdiction to hear cases involving you. But choice of law is a different matter from jurisdiction, no? The state you operate in might apply the law of another state — do you happen to know the usual choice-of-law rule for right of publicity claims?

                  As to filmmakers, distributors, and exhibitors, all are potentially subject to right of publicity claims. So even if you were right that making a movie in State X that doesn’t recognize a post-mortem right of publicity would always keep you from being sued under some other State Y’s post-mortem right of publicity (and I don’t think you’re right about that), exhibitors and distributors in State Y could be sued in State Y for their actions in State Y.

                  1. ” even if you were right that making a movie in State X that doesn’t recognize a post-mortem right of publicity would always keep you from being sued under some other State Y’s post-mortem right of publicity (and I don’t think you’re right about that), exhibitors and distributors in State Y could be sued in State Y for their actions in State Y.”

                    How you would get a choice of law decision to invoke the law of a state you aren’t operating in wasn’t covered in CivPro I or II.
                    Exhibitors and distributors (or anyone else ) that don’t operate in State Y are nonetheless subject to State Y law? Are you sure about that?

                    1. “Exhibitors and distributors in State Y could be sued in State Y for their actions in State Y,” which is to say for exhibiting and distributing the film in State Y. So say that the choice of law rule were the law of the forum (it isn’t, but I think that was your assumption). And say someone followed your advice and made a movie in New York (a state that lacks a post-mortem right of publicity). If their movie were shown in a state that recognized a post-mortem right of publicity, exhibitors in that state (and distributors that distributed in that state) would be subject to the post-mortem right of publicity.

                      More on the choice of law answer in a separate comment.

                  2. “do you happen to know the usual choice-of-law rule for right of publicity claims?”

                    I don’t. But an article I found with Google says it’s the domicile of the person claiming right of publicity. Dead people don’t have domiciles, except in George Romero movies.

                    1. The answer is that, “Almost all courts follow the rule that the existence or non-existence of a post-mortem right of publicity is determined by the law of the state of domicile at the time of death” (McCarthy & Schechter, Rights of Publicity and Privacy). So if you want to make a movie in which LBJ was a character, then even if you made it in New York (which doesn’t recognize a post-mortem right of publicity), LBJ’s heirs could sue you in New York for infringement of the right of publicity, and New York courts would apply Texas law. Now you’d still probably win, but likely because of the First Amendment defense (or because the Texas statute would be interpreted to avoid First Amendment problems) — not because you’re making the movie in a no-post-mortem-right-of-publicity jurisdiction.

        2. David Nieporent is correct: Many states recognize a post-mortem right of publicity. (Rothman’s Roadmap to the Right of Publicity has lots of information on this and other matters.)

      2. Dilan,
        Why pick on Trump and leave him out of the legion of superheroes?

        I don’t know what Trump’s offensive superpower would be. But I assume it would have something to do with eating prodigious amounts of fried chicken. (His defensive superpower, obviously, would be: invulnerability to attacks that would kill any normal politician.)

        1. Because Trump is clearly a supper villain.

        2. “I don’t know what Trump’s offensive superpower would be.”

          The Superlie.

    3. If movie producers don’t have to pay to put celebrities’ likenesses in their products, they can trade on the celebrities’ fame.

      It’s not clear to me whether you’re suggesting that in a situation like Straight Outta Compton you think they do have to pay; they don’t, any more than any biographer has to pay his subject.

      But in any case: so what if they trade on the celebrities’ fame? Why is a person’s fame something that he or she ought to have an exclusive right to? It’s not analogous to copyright, which involves actual creative intellectual effort.

      1. “It’s not clear to me whether you’re suggesting that in a situation like Straight Outta Compton you think they do have to pay; they don’t”

        they did pay (NWA). and got sued for not paying for everyone.

        1. I have no idea whether they paid NWA, but the only lawsuit pertinent to this discussion that I can find mention of is one filed by the group’s manager. He threw a laundry list of claims into his complaint, indeed including one for misappropriation of likeness, putting him in the movie without his permission. But that claim was in fact dismissed on the grounds that in fact they are not required to pay him to use his likeness because the film is about matters of public interest.

          1. They still had to pay their lawyer to make Jerry go away.

      2. ” Why is a person’s fame something that he or she ought to have an exclusive right to? It’s not analogous to copyright, which involves actual creative intellectual effort.”

        I’ll meet you halfway, it’s not like copyright in the sense that copyright has a federal statute establishing and protecting it. Fame has to be built and maintained. A-list actors and actresses get paid 8 figures to be in a movie because the marketing of the movie can be built around the fact that an A-lister is in it. The movie is more valuable because fans of (star) will go see it, will buy a DVD when they are available. That value is coming from the creative professional so suggesting it isn’t actual creative intellectual effort is foolishness.
        Make a bad movie, and you can trash the A-lister’s track record and derail them right off the A-list, costing them money. I think that is and should be actionable. Now, if you have somebody who has fame from some other source, getting them to lend their fame to your movie project is the same. Videogames are just movies with 100% CGI content.

    4. It’s bad enough we allow digitally-altered political campaign advertising (if you didn’t catch your political opponent saying something unpopular, just edit the recording until you did.)

      Er, the problem with that is defamation, not right of publicity.

      1. There’s more than one problem there. Good luck suing a politician for defamation.

        1. Well, you can’t sue for violation of the right of publicity in that context, so you should stick with defamation.

          1. Just a couple of days ago, there was an article here explaining why defamation suits against sitting Congresspeople don’t work. The Justice department intervenes, substitutes the U.S. as defendant, and then asserts sovereign immunity.

    5. The logic of that argument makes all impersonators either illegal or subject to veto by the subject. No Trump masks at political protests. Not even Trump masks with horns. No Biden masks, either. You could probably still have a Guy Fawkes mask but only because he’s dead and has no heirs to pursue the case.

      Comedians Rich Little and Mel Blanc would be out of work. So would pretty much all political cartoonists. In their day, your logic would eliminate all the works of Shakespeare, Milton… Frankly, I’m hard pressed to think of any works of fiction or even non-fiction that wouldn’t be subject to extortion or de facto veto by the logic of your argument.

      Is that tough for guys like Liam Neeson who get parodied? Yes. But what you are proposing instead is an unworkable standard.

  2. to drag up another example, “Abraham Lincoln, vampire hunter” isn’t a problem because Mr. Lincoln is currently dead, and dead people do not have rights of publicity.

    1. And another:
      Futurama had former Presidents in the “Head Museum”, and Richard Nixon gets elected as President of Earth and appears in that role in several episodes.

      same story: Currently dead, no rights of publicity to infringe.

    2. But as noted above, that’s wrong. Dead people (or their estates) do have rights of publicity in some states. Indeed, in some states — from distant memory, Indiana comes to mind — the right extends for a long period of time.

      1. How many movies and TV shows are made in Indiana?

        1. Why do you think where the movie/show is made is the dispositive — or even relevant — question?

          Also, I just picked Indiana as an example. In California, where an awful lot of movies and TV shows are definitely made, the right of publicity survives death.

          1. David Nieporent: You are right that California recognizes a post-mortem the right of publicity by statute — but that statute turns out to expressly exclude any “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” (with an exception for advertisements or perhaps product placements that are present within the work). So including characters based on real dead figures in a TV show or a movie generally would not be covered under this particular statute.

          2. ‘Why do you think where the movie/show is made is the dispositive — or even relevant — question?”

            jurisdiction… if you sue in,say, Indiana and the production company is in Los Angeles, their lawyer is going to say “we aren’t in Indiana” in Latin and get the lawsuit dismissed.

            1. James, you’re wrong. You’ve already been repeatedly told you’re wrong. Showing the movie in Indiana is enough to get you sued in Indiana. You don’t even have to show it there intentionally. Releasing it over YouTube and merely allowing it to be seen in Indiana can get you sued there.

              Have you paid no attention at all to the many articles here over time that mention the evils of forum shopping? Where a product is made is only a very tiny part of your footprint of exposure.

  3. Real people get no protection. Made up characters can be completely protected. Maybe that makes sense. I think I am in favor of protecting both kinds alike.

    1. Can made up characters be *completely* protected? Even against parody? I don’t think so. The crushing volume of Harry Potter fan fiction and porn parodies suggests otherwise.

  4. Here’s a good one — an author takes the name of a real Maine island and the real names of people who lived there in the late 19th Century, and makes up salacious stories about them, much to the chagrin of their grandchildren.

    1. Now because of which island it is, the author is more likely to get shot than sued, but what redress do *living* people have if, say, their ancestry is libeled, e.g. their grandfather wasn’t their grandfather.

  5. And then Stephen King uses real cases — _The Colorado Kid_ was 19 year old Bella Baldwin who was found dead on Vinalhaven Island in 1972 and as to _Delores Clayborne_, well Vinalhaven has its secrets.

    1. And “Haven” was a documentary.

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