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Right of publicity in video games

February 5, 2021

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video game — Image source: https://cutt.ly/bkk6U4x

This article is written by Preeti Pallavi Jena, from the school of law, KIIT University, Odisha. This article talks about the right of publicity, the specific case laws relating to it, and the publicity regarding video games.

Table of Contents

Introduction

According to US laws, the right of publicity means privacy to personal rights. This right to privacy, for the first time, came in the US in the decision of the case law, Haelan Laboratories Inc. v. Topps Chewing Gum Inc. This case was regarding the disputes which arose in using the ballplayers which are well-known photographs for the advertisement of chewing gum companies.

Also in another case law, Zacchini v. Scripps Howard Broadcasting Co. Here again, the right of publicity was observed and it was termed to be a property right and is put in a restatement of unfair competition and misuse of the publicity.

Elements for the publicity claim

Elements in right of publicity claim:

If there is a use of the identity of the plaintiff by any person.
The name is used as an advantage for the purpose of trade or business.
No consent has been given with regard to the publicity.
The person’s reputation is hampered.

Right of publicity

It’s a right that tries to control the misuse of any person’s identity, name, fame, and image. This is more applied to the people who are quite famous either as a person or in their business. This right takes care of their reputation. It happens when products are sold in the market for business purposes with the name or image of a famous person or celebrity. This attracts citizens of society to buy it more. It becomes easier for businessmen or sellers to sell their products. For example, it’s very easy to sell a bat that has the signature of MS Dhoni in it, but it becomes difficult to sell a general bat without the sign. Though it creates a lot of benefits, infringement suits can also be filed against the businessman for using it without their permission because the misuse of it will infringe their right of publicity.

But the use of their names in news for public purposes will not be treated as a misuse of it. It’s not only applicable for celebrities, it can also be applicable to any person whose image is used for selling purposes. That person can surely claim the right of the misappropriation. This is why models, celebrities whose images are there for selling products, sign contract deals, and also get money for these purposes. They basically give their consent in the agreements for using their images, if any image is used without their knowledge then they can claim for misuse of their right to publicity. This happens when the name or image is used for trade or commercial purposes.

The right of publicity is there in many countries like California, New York, Florida, India, and these countries have regulated the right for the benefit of society.

The Saderup Transformative Test

The application of this test came in 2001 where the Supreme Court of California brought a page from the copyright fair use in Comedy III Productions, Inc. v. Gary Saderup, inc. Here the complaint was made when an artist is offering the public the depiction of 3 stooges on any prints, shirts, and trading merchandise. These 3 stooges made him avail the protection of the First Amendment against the claims of Comedy III which they claimed for publicity of their rights. For availing protection under the First Amendment, the work which is done must be expressed and the expression of the artist should be transferable in some or other way. This test actually decides the advantages of a right of publicity claim.

Publicity of Video Games

The US courts gave three case laws that held that video games consist of protection of speech and full protection in the First Amendment. The cases are as follows:

Davis v. Electronic Arts Inc.

In this case, The District Court of California rejected the class action certification for the Former National Football League players who sued Electronic Arts for the misuse of his likelihood in the series of video games. In this case, the court protected the publicity rights of the former football players of having the image in the video games as first amendment rights.

A lawsuit was filed by the former football player for him and other former football players which are around 6000 whose likeness is misused without their permission and knowledge in 2010 by Electronic Arts in his series of video games.

The National Football League video game provided that users can play as a historical football team in the digital game. Due to this right only, the retired players of the National Football League claimed Electronic Arts for violating the right to publicity, unfair competition, conversion, etc. Since Electronic Arts moved more than what he is given license for. This is done for selling more video games through the likeness of the players but this is a misuse. IIn 2012, the District Court rejected Electronic Arts rights and said former national football league players have the right to claim. But the Electronic Arts was not satisfied with the decision and again appealed in the Ninth Circuit.

Here the plaintiffs said that without the real similarity in the pictures or avatars and the same jersey number also it was easily identified and hence proved as a right of publicity misuse. The court held that even though the pictures are identifiable it cannot be able to overcome under the First Amendment Defence.

Hart v. Electronic Arts Inc.

Here, in the case held in the year 2001, Ryan Hart the appellant filed a suit against Electronic Arts for violating the right of publicity under New Jersey law. Hart basically claims that Electronic Arts used his likeness and information in its NCAA Football series of video games. The District Court gave judgment in favor of Electronic Arts because the court said the use of hart likeness was very well protected under the first amendment. But this judgment which was made by the District Court was not proper and hence hart appealed again.

The court said that the games did not transform heart likeness for getting away from the right of publicity claim. The court also said that the test which was made for creating a balance between the right of publicity and the first amendment was best in nature. This case is known as the transformative use test. The court said that the videogame of football did not fulfill the criteria of the test because Electronic Arts established many game assets to support the newly changed avatars. The District Court decision was reversed because major changes were made in the avatar and hence no more the right to use his identity will be considered by the court’s finding anymore.

Keller v. Electronic Arts Inc.

In this case, an action was filed by the former football player against the video game inventor for using his identity for commercial purposes in many games related to football.

NCAA football allows the users of video games to have control over assigning the avatars of the college football players. The Electronic Arts, search for copying the whole team of every school properly. In 2005, Samuel Keller virtually copied. Keller filed a complaint in California and objected for use of his likeness and the violation of his right.

The issue was that does a game developer which is the electronic arts have a first amendment defense against the right of publicity claims of the football player whose avatar is used in the video games. The court held that the electronic arts who are the developers of video games don’t have any defense in the first amendment against the right of publicity claims by the football player Samuel Keller. This was done because as per the test of transformative use which was made in California’s Supreme Court. It said that the use of a person’s image will not be eligible for first amendment protection. And here Electronic Art’s recreated Keller and hence, the court rejected Electronic Arts for importing the balance test.

Personal rights and the tort of passing off

The right of publicity is considered a tort. This tort doesn’t need the test of likelihood of confusion which is opposed to a passing-off action. The three main elements of the passing-off action are:

Misrepresentation,
Goodwill of the person is misused,
Damages (compensation).

Excluding the US, all the famous personalities whose names, images are used for commercial or trade purposes have to resort to the common law tort of passing off for misusing or being a part of deceptive conduct. As per the passing-off action, it tries to protect the reputation, goodwill of the person in this respect. In India, the right of publicity is termed as the fundamental right under Article 21 of the Constitution and it is also treated as torture to the fundamental right of a person. In India for the first time, the establishment of the right of publicity was made in a case of law in the Supreme Court, called R Raja Gopal v. State of Tamil Nadu. Here in this case if a person’s likeness, image is used without his permission then it is violating his reputation and it hampers the publicity right also.

In recent case law, Justice K S Puttaswamy v. UOI, The court leads to the privacy matters of a person and says it is the main element and needs to be protected as a fundamental right of publicity as a personal capacity. In India using the names and images of players has been hugely used in video games and it can be treated as misusing the identity of the person.

In the case of Brown v. Entertainment Merchants Ass’n, the Supreme Court of the US found the California state has restricted the sale of video games for children without the approval of their parents. This was made because video games also provide social messages like the books and movies do and this can affect the mindset of the child. And this is protected under the first amendment.

In the case of No Doubt v. Activision Publishing Inc., there was a pop music group, who claimed the right of publicity against a video game player for using the images, pictures of the band in his video games. This manipulates the players to play various styles of music which are totally similar to the performances of the band. The court said that no defense under the first amendment can be taken since the band did exactly what they do as celebrities and hence it was not at all transferable.

Conclusion

Today also there is a lot of uncertainty in the right of publicity and this uncertainty can create various losses and demerits to the person whose rights are hampered if appropriate measures are not taken. It is still confusing and not clear whether the right to publicity is only applicable to the celebrity or any individual also. Nowadays, everyone is dealing with social media accounts and the internet. By just sharing, reposting, and commenting on videos, photos can instantly be done and this can also hamper the right to the publicity of an individual. If any such thing is done without the permission of the person concerned and damage has been caused to that person then he can claim remedies which can be either monetary or even something else as compensation with regard to their reputation.