The Volokh Conspiracy
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Video Game Developers Have First Amendment Right to Base Characters in Part on Real People
So the Third Circuit held yesterday.
From yesterday's decision in Hamilton v. Speight (3d Cir.) (nonprecedential), written by Judge Paul Matey and joined by Judges Michael Chagares and Thomas Hardiman: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 Paris, Picasso 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.
