The Volokh Conspiracy
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The decision, released Tuesday, is here (Noriega v. Activision/Blizzard, Inc. (Cal. Super. Ct.)). I think the result is right, and I hope it's upheld on appeal, but the matter ends up being—unfortunately—more complicated than it should be. Let me repeat some things I posted about this when the case was filed, and explain where this new decision fits in the framework.
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:
- "Any person who knowingly uses another's name, voice, signature, photograph, or likeness,"
- "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,"
- except "in connection with any news, public affairs, or sports broadcast or account, or any political campaign,"
- "without such person's prior consent,"
- "shall be liable for any damages sustained by the person or persons injured as a result thereof."
The damages can include both emotional distress damages and lost licensing fees, the theory being that if defendant used the name or likeness commercially, it (or someone else) would have paid to use it. California also still recognizes the judge-made tort, which is slightly different but similar. Other states also recognize the judge-made tort, and some states have special statutes that are similar to California's (though often not identical).
The problem, of course, is that people use others' names and likenesses in "products" or "goods" all the time, even setting aside the news exception. An unauthorized biography, which is probably not "news" or "public affairs" as such, is a commercial product or good, and uses the name or likeness. So are fiction movies and books that revolve around real events, and include photographs, "likeness[es]," or even just the names of famous people: Think "Forrest Gump" or "Midnight in Paris," though referring to living people. (California's right of publicity, like that in many states, also covers dead people, for 70 years after their deaths, but specifically excludes works of fiction and songs and not just news, when dead people are being referred to.) So are songs that refer to cultural items, such as in Paul Simon's "Where have you gone, Joe DiMaggio?" line, or Pitbull's "So, I'm toptoein', to keep flowin', I got it locked up, like Lindsay Lohan."
Because of this, courts have held, the First Amendment must impose addition constraints on right of publicity law. The trouble is that different courts have drawn different lines (except as to use in outright commercial advertising for nonspeech 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):
- 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.
- 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).
- 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.
- 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.
- 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 (#4 above), in holding that Electronic Arts' "NCAA Football" video games infringe the rights of the players whose identity attributes are used in the videos.
But the trial court in this case rejects the Ninth Circuit's decision, and seems to adopt the much more speaker-friendly transformative work test (#3 above). Here is the heart of the analysis:
[D]efendants' use of Noriega's likeness was transfonnative. The publicly available photographs of Noriega used to create his avatar were part of the extensive "raw materials" from which the game was synthesized. Noriega's depiction was not the "very sum and substance" of the work. The complex and multi-faceted game is a product of defendants' own expression, with de minimis use of Noriega's likeness. Because the video game is transformative, economic considerations are not relevant. Regardless, the Court concludes that the marketability and economic value of the challenged work in this case comes not from Noriega, but from the creativity, skill and reputation of defendants. [Compare [No Doubt v. Activision, Inc., 192 Cal. App. 4th 1018 (2011)], where the Court of Appeal concluded that Activision's use of the band's images was motivated by the commercial interest in using the band's fame to market the video game.] …
"[P]ublic prominence does not confer a shield to ward off caricature, parody and satire." Plaintiffs claim pursuant to Civil Code 3344 cannot survive defendants' First Amendment'defense. [Footnote: Plaintiff places great reliance [on] Keller v. Elec. Arts Inc., 724 F.3d 268 (9th Cir. 2013). First, that case is not binding authority on this Court. Further, to the extent that Keller suggests that the entirety of the disputed work should not be considered under the second prong of the anti-slapp analysis, such reasoning is in conflict with the controlling California authorities cited herein and relied upon by this Court.]
And indeed Noriega would have had a much stronger case had the court followed the Ninth Circuit decision. Consider the heart of the Ninth Circuit's conclusion 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 [the game involved in No Doubt], 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."
Based on a fan account of the game (Call of Duty: Black Ops II), the Noriega character is likewise represented in a realistic context, as someone quite similar to what he was—not an identical character, but also not a (to quote the approach adopted by the Ninth Circuit) "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).
Fortunately, the Noriega trial court rejected Keller, as it was entitled to do. State courts aren't strictly bound by federal appellate decisions even on matters of federal law; but they are especially not bound by them on matters of state law, since state law is what state courts (albeit state appellate courts) say it is, and federal courts applying state law are just supposed to follow state courts, or predict what state courts would be saying.
I'm also glad the court didn't view No Doubt as covering this case, though I'm not sure the distinction it offered—that Band Hero was marketed in part "using the band's fame" and presumably Call of Duty: Black Ops II wasn't marketed as substantially using Noriega's fame—is quite right: My sense is that No Doubt's fame was only a small part of Band Hero's appeal. (According to the No Doubt opinion, "[s]ome of the available avatars are fictional characters created and designed by Activision while others are digital representations of real-life rock stars," and "[p]layers can also design their own unique fictional avatars"; there are, as I understand it, many options besides No Doubt in the game.) Moreover, even unauthorized biographies and works of fiction that focus on a famous person, and that are marketed in large part based on the person's fame, should be protected by the First Amendment; and the Court has held that video games are as protected by the First Amendment as are more traditional media (see below). But in any event, it will be interesting to see what the California Court of Appeal does with the case, or perhaps even what the California Supreme Court, if the case gets up that high. I hope the court will affirm the trial court's decision, even more firmly reject Keller, and limit No Doubt.
Note that the results of this case would likely not be 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 Noriega and others like him could similarly sue over uses of their names, photographs, or likenesses in movies, in graphic novels, in ordinary novels, in songs, and elsewhere. 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.