Every once in while a story might pop up in the news that has you scratching your head. College football players suing EA for using their likeness in their NCAA video games. Manuel Noriega, the military dictator of Panama from 1983 to 1989, suing Activision for his inclusion in Call of Duty: Black Ops II. Under what legal theory are these individuals able to bring suit (with varying degrees of success) against these gaming companies? The answer is the right of publicity.
The right of publicity is defined as, “the commercial value of a person’s identity by using without consent the person’s name likeness, or other indicia of identity for purposes of trade.” This right prevents the unauthorized commercial use of an individual’s name, likeness, or other recognizable aspects of a person’s persona. This means that it gives an individual an exclusive right to license the use of their identity for commercial promotion. An example of this would be slapping a picture of Beyoncé on a t-shirt and then selling it. The only reason people are purchasing your t-shirt is because her image is included on it. You are directly piggy backing off of her fame to turn a profit. The law recognizes that she has a right to prevent you from doing this and recoup the financial gain you reaped.
You might be thinking to yourself, “It’s a free country with free speech. The first amendment allows me to do this.” The answer to that is, “It depends.” Way back in 1977 the Supreme Court tackled this question in Zacchini v. Scripps Howard Broadcasting Co. Zacchini was a human cannonball and felt he had been wronged by Scripps Howard broadcasting his performance on television. In those days, you hyped the hell out of your act and then sold tickets to the event. If someone played it over the air the likelihood of people seeing it in person went down. This means Mr. Zacchini isn’t making the same money he was before. We love watching people shoot themselves out of cannons and by broadcasting these acts without compensation we will discourage these types of performances. The Court agreed and merely held, “[w]herever the line in particular situations is to be drawn between media reports that are protected and those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer’s entire act without his consent.”
Whenever the Supreme Court does something like this it means the lower courts have to do the dirty work of fashioning some sort of test. In this case, how to balance the First Amendment protections against this new right of publicity protection. So now we have: (1) the Restatement approach; (2) the transformative use test; (3) the predominant use test; and loosely (4) the Rogers test. Thanks, Supreme Court. For the law nerds, I’ll provide a brief overview of what exactly the transformative use test is. Otherwise, skip on down to “The Right of Publicity Clashes with Video Games”
The Transformative Use Test
The California Supreme Court formulated the transformative use defense in Comedy III Productions, Inc. v. Gary Saderup, Inc. The defense is, “a balancing test between the First Amendment and the right of publicity based on whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation.” Further broken down, the five considerations courts must consider are whether: (1) the celebrity likeness is one of the raw materials from which an original work is synthesized; (2) the work is primarily the defendant’s own expression if the expression is something other than the likeness of the celebrity; (3) the literal and imitative or creative elements predominate in the work; (4) the marketability and economic value of the challenged work derives primarily from the fame of the celebrity depicted; and (5) an artist’s skill and talent has been manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit the celebrity’s fame.
The question when using the transformative use test is not whether a particular work loses its First Amendment protection. Instead the question is “whether the interests protected by the right of publicity are sufficient to surmount the already-existing First Amendment protections.” Thus the question becomes “has an individual’s identity been sufficiently transformed?” Identity encompasses “not only [an individual’s] likeness, but also his biographical information”.
In order to accomplish this goal in video games, the Third Circuit utilized the transformative use test only upon the specific avatar at issue rather than the entire creative work. To do so otherwise would mean that “[a]cts of blatant misappropriation would count for nothing so long as the larger work, on balance, contained highly creative elements in great abundance.” Further, the Third Circuit also clarified that in the video game context the mere ability to alter an avatar’s appearance would not serve as a shield to right of publicity claims. To do so otherwise would mean even blatant instances of misappropriation could duck liability by letting the user alter the avatar in some fashion.
The Right of Publicity Clashes with Video Games
At the time Zacchini was decided video games were just starting to boom. Today, video games employ over 120,000 people and rival the size of the motion picture industry in terms of overall revenue. Video games got their start in 1972 thanks to a small bar named Andy Capp’s Tavern in Sunnyvale, California. A new company called Atari, Inc. chose to debut their first game, Pong, at the bar largely due to their good relationship with the bar’s manager Bill Gattis.
Pong would later become the first arcade game to reach widespread success and allow Atari to dominate the gaming scene through the 70’s and 80’s. Since then, video games have become a past time for most Americans and have progressed far beyond the iconic black and white game board of Pong. Now games feature stunningly realistic representations of real world locations and people. Much like you could print Beyoncé’s face on a t-shirt so could you also recreate her digitally in a video game. That’s a problem for Beyoncé.
The courts have decided that video games qualify for First Amendment protection but when you throw Beyoncé in your game then you’re going to need one of those balancing tests listed earlier. The First Amendment is inherently limited by the right of publicity. But rather than spend a bunch of time talking about how it does this in theory, let’s dive into the cases mentioned earlier.
In re NCAA Student-Athlete Name & Likeness Licensing Litigation
In re NCAA Student-Athlete Name & Likeness Licensing Litigation, decided in July of 2013, involved the Ninth Circuit balancing the right of publicity of a former college football player against the First Amendment right of a videogame developer. EA produced the NCAA Football series of videogames. It allows players to control various avatars representing college football players. EA subsequently attempted to replicate the players and each schools’ team through jersey numbers, height, weight, build, skin tone, hair color, and home state. Moreover, EA would send questionnaires to team equipment managers and study highlight reels in order to match unique play behavior. The NCAA forbids the use of actual player names. So… EA just goes ahead and omits the players’ names on their jerseys while assigning each player a home town that is different from the actual players’.
Keller, a starting quarterback for Arizona State, objected to the use of his likeness and filed a putative class-action alleging EA violated his right of publicity. Keller argued that his physical characteristics have been replicated and realistically portrayed. Moreover, the substance of the game is the same as users control Keller’s avatar playing football in various stadiums. Relying upon the transformative test, the court found this reasoning persuasive and concluded that “EA’s use of Keller’s likeness does not contain significant transformative elements such as that EA is entitled to the [First Amendment] defense as a matter of law.” On July 16, 2015 final approval was granted for a $60 million settlement between the NCAA, Electronic Arts, and the student athletes who brought the right of publicity claim. This won’t be the last lawsuit of its kind and other similar claims are filtering up through the courts.
Manuel Noriega v. Activision/Blizzard, Inc.
Following this case Panamanian dictator Manuel Noriega brought a claim against Activision and Blizzard for his use and portrayal in “Call of Duty: Black Ops II”. At specific issue was “Suffer With Me” the seventh mission in the campaign where the player is tasked with capturing Noriega and destroying his reputation. During the mission players encounter Noriega’s “life-like computer-generated character [that is] the villain the player… must annihilate and humiliate.”
Noriega contends that he has been portrayed as nothing more than what he is, in the setting in which he gained his notoriety. Noriega argues that much like No Doubt and Keller, he is referred to by, “the same name, is called by the same monikers (i.e., “Pineapple Face”), has the same build, the same facial features, and the same outfits and is in the same setting as he was when he became well-known.” Noriega concludes that when a defendant, “uses an exact depiction of a band, a college football player, or a General in its videogame, it has violated that person’s right of publicity.”
The court was unimpressed and dismissed Noriega’s complaint with prejudice. The court found two factors dispositive in determining that the use of Noriega’s likeness was transformative. First, defendant’s use of publicly available photographs to create Noriega’s avatar was a small part of extensive “raw materials” used to make the game. The court doesn’t elaborate on this point but concludes it is transformative. Second, his depiction was not the “very sum and substance” of the work and was de minimis compared to the whole. Finally, the court concluded saying 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.” This case is very similar to In re NCAA but is victim to having a detestable plaintiff that the court is unwilling to reward. EA also crafted its games using extensive “raw materials” from surveys and publicly available data. Each individual college football player did not constitute the “very sum and substance” of the work and yet an opposite conclusion was reached. Similar facts, opposite conclusion.
The legal waters surrounding this right of publicity are murky and change depending on where you go. California happens to be a large nexus where these cases get decided. It’s no wonder when this is the home of Hollywood and several large and influential gaming companies. These cases can and do have a large impact on the industry. EA has just decided to abandon the NCAA series of video games rather than come to the table and work out an agreeable licensing deal for college athletes. Cases of these kind won’t be going away any time soon.