Expanding the Playing Field for Video Game Lawsuits

Video game litigation is a hot area for entertainment lawyers in 2015, as more celebrities have sued over being cast as game characters without their permission. The spree is driven by a pair of 2013 rulings that sided with athletes depicted in college football games, lawyers said, as well as by the overall boom in gaming sales which has made the industry a rich target for plaintiffs lawyers.

Attorneys who specialize in right-of-publicity cases say they don't see the pace of litigation slowing down this year. But they're also eyeing a handful of cases they hope could slow plaintiffs' momentum and expand First Amendment protections for the depiction of real figures in creative works.

Kelli Sager, a partner in Davis Wright Tremaine's Los Angeles office who specializes in media and entertainment litigation, said over the course of 30 years of practice she was used to seeing an average of one right-of-publicity claim every year or two. “We're now defending, I can think of six off the top of my head,” she said. “So it's a huge amount of litigation.”

Keller v. Electronic Arts Inc. (EA) , 724 F.3d 1268 (9th Cir. 2013), and Hart v. Electronic Arts Inc. , 717 F.3d 141 (9th Cir 2013), both came down in favor of athletes who claimed they were depicted as video game avatars without their consent. The appeals courts found Electronic Arts' portrayal of plaintiffs ' the avatars looked just like the real players and played football where and how the real people played ' was not sufficiently transformative to warrant First Amendment protection.

A subsequent lawsuit was filed last summer by former Panamanian dictator Manuel Noriega, upset over his portrayal in video game Call of Duty: Black Ops II . Former New York City Mayor Rudolph Giuliani appeared in that case for Activision Blizzard Inc. That suit, in Los Angeles Superior Court, was dismissed in October on the grounds that the video-game maker was protected by its right to free expression. The superior court found Noriega's character wasn't a central part of the game and “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 the defendants,” Judge William Fahey wrote. Noriega v. Activision Blizzard Inc. , BC551747.

Right-of-publicity lawyers also wonder if the dismissal had something to do with Noriega's notoriety. (He is incarcerated in a Panamanian prison, serving a sentence for drug trafficking, money laundering and killing political opponents.)

Meanwhile Rockstar Games, the maker of video game Grand Theft Auto V , continues to fight a suit filed by Lindsay Lohan in New York's Manhattan Supreme Court over her alleged portrayal in the game. See , Lohan v. Take-Two Interactive Software , 156443/2014. And in September, intellectual property rights firm CMG Worldwide Inc. filed suit in the Northern District of California against the maker of a World War II video game over its depiction of General George Patton, dead nearly 70 years. See , CMG Worldwide Inc. v. Maximum Family Games LLC , 2014cv05124.

Legends of War Case

CMG, an intellectual property rights firm that represents the estates of dead celebrities, including James Dean, sued over the video game Legends of War: Patton . In Legends of War , players become General Patton as he battles his way “from the blood-soaked beaches of Normandy to the war-torn streets of Berlin,” according to the game's packaging. CMG says it has agreements with the Patton family, who give it the exclusive right to license the general's name and likeness to third parties.

According to the Northern District complaint filed against Maximum Family Games by lawyers in Winston & Strawn's Los Angeles office, the maker of the Patton game “commercially exploited General Patton's name, image and likeness without CMG's consent.” The suit claims Maximum Family violated CMG's right of publicity and engaged in unfair competition.

Court records show that CMG has filed almost two dozen federal cases over the past 10 years involving celebrities and celebrity estates it handles, mostly in California, New York and Indiana, the latter where the company is headquartered. In October 2014, CMG filed a trademark suit against US Specialty Vehicles in the Central District of California over the company's use of Patton's name to market pseudo tanks built from Ford 350 and 450 trucks. See , CMG Worldwide Inc. v. US Specialty Vehicles LLC , 5:2014cv02202.

Contrasting the Noriega ruling with the possible outcome of CMG's suit against Maximum Family, Fenwick & West partner Jennifer Lloyd Kelly commented that the celebrity at issue could indeed play a role in the court's decision. A decorated American general could have an edge over a Central American dictator. “Patton and Noriega,” Kelly said. “Not the same.” A point in Maximum's favor: CMG has to contend with California's 70-year limit on post-mortem publicity rights. In Patton's case, those rights will be up in a little over a year. That will probably put a cap on damages, Kelly said.

CMG seeks treble damages and a disgorgement of profits from Maximum, as well as corrective advertising to fix the “confusion, mistake and deception” allegedly caused by the unauthorized use of the general's brand. “Maximum's conduct has damaged the value to CMG of General Patton's name, image and likeness,” according to the complaint, “has interfered with CMG's ability to license General Patton's name, image and likeness for use in other video games; and has damaged CMG's ability to enforce its rights to General Patton's name, image and likeness against third parties.”

In a blog entry following the Noriega decision, UCLA School of Law Professor Eugene Volokh commented on the confusion around right-of-publicity law. “The trouble is that different courts have drawn different lines,” he wrote. “Roughly speaking, there is authority for at least five different rules.”

Sager is optimistic more courts will follow the Noriega ruling, and consider whether the depiction of real-life characters in a video game is just an element of an otherwise original work. Ultimately, Sager expects the U.S. Supreme Court to weigh in. “It's going to take a high court decision to really clear up the law,” she said. Until then, she is finding it difficult to show her clients where the line is between free expression and infringement.

Video Games and the First Amendment

The Supreme Court provides video games the same protection under the First Amendment as books, films, and other forms of art. But as video games are a relatively new form of media, they have been tricky for courts to figure out how to regulate, said Leonard Aragon, a Phoenix lawyer and partner at Hagens Berman Sobol Shapiro who argued for plaintiffs in Keller . As graphics improve, video game makers can create avatars that look increasingly like the public figures they're intended to portray. But they also have the ability to build alternate universes that transform those public figures in new ways. “I think it creates unique circumstances,” Aragon said, “where you can basically create anything you want.”

Sunnyvale, CA, solo lawyer Brian Henri, who represents retired NFL players who sued EA over its use of their likenesses, said it's become clear this year that the courts view the “transformative use test” as the accepted standard to judge publicity rights in video games, just as in other forms of media. A video game may use a celebrity likeness if it sufficiently transforms the character, which EA's hyper-realistic sports games do not, he claims.

Henri made that argument before the Ninth Circuit in September 2014, while EA lawyer Alonzo Wickers IV of Davis Wright Tremaine countered that test doesn't offer adequate protection to the inherently expressive nature of a video game. He argued a new test should be created that takes into consideration the enormous amount of artistry and design that goes into creating a video game.

Henri said the courts have consistently rejected such “novel” arguments. The characters themselves aren't transformed at all from their real-life inspirations, he argued, and ever-improving graphics just mean the characters become more and more lifelike. “You just can't take someone's likeness and incorporate it into your video game without permission,” Henri said.

Groups like the Electronic Frontier Foundation (EFF; eff.org), which champions free expression, have found themselves in line with the video game makers. EFF staff attorney Daniel Nazer said the “transformative use test” makes sense when talking about an appropriated song or piece of artwork, but not a person. “There's no reason why realistic speech or depiction should be less protected under the First Amendment,” he said.

Hurt Locker and Keller

A Ninth Circuit decision in a case over the war film The Hurt Locker may make the balance between publicity rights and free expression more clear. In Sarver v. The Hurt Locker LLC , 10-cv-09034, an Iraq war veteran has claimed a central character in the 2010 Academy Award winning Best Picture was drawn without his permission from interviews about his experiences fighting in Iraq. The Central District of California dismissed the suit in 2011 under California's anti-SLAPP law.

The appeal, argued in May 2013, could have implications beyond film, for how public and historical figures are used in video games and other forms of media, said right-of-publicity lawyer Lincoln Bandlow of Lathrop & Gage in Los Angeles. “It could dramatically change the entire world of motion pictures, biographies, docudramas,” he said. “The entirety of docudramas will change if it is ruled that a historical person has the right to stop depictions of themselves in films.”

Meanwhile, in January 2015, the Ninth Circuit ruled in favor of the retired NFL players who Brian Henri represents in their suit against Electronic Arts Inc. over their portrayal in the Madden NFL video games. A three-judge panel rejected arguments by EA that the First Amendment protects the company's depiction of the athletes in its multi-billion dollar game franchise. In Keller v. Electronic Arts , “we rejected several of the First Amendment defenses EA raises here on materially indistinguishable grounds,” wrote Circuit Judge Raymond Fisher in a unanimous opinion joined by Judges Stephen Reinhardt and Marsha Berzon. Davis v. Electronic Arts Inc. , 12-15737 (9th Cir 2015).

During the oral arguments before the Ninth Circuit in September, EA lawyer Wickers claimed the retired players' avatars make up just a few of the thousands of virtual athletes in the game and should be protected as an incidental use of the players' likenesses.

But the appellate panel ruled the avatars are vital to EA's main commercial purpose. “Accurate depictions of the players on the field are central to the creation of an accurate virtual simulation of an NFL game,” Judge Fisher wrote.

This litigation began in 2010, when retired NFL players Michael Davis, Vince Ferragamo and Billy Joe Dupree sued EA for infringing their right of publicity. The video game company paid current NFL players licensing fees to use their names, likenesses and uniforms, but did not compensate the roughly 6,000 retired players depicted in its historic teams. EA did not name the retired players in the games, but it created avatars using their skin tone, height, weight, position and skill level.

EA tried to get the suit thrown out in 2011 under California's anti-SLAPP law, claiming it was an attack on the company's right to free expression. Judge Richard Seeborg of the Northern District of California rejected that argument, and EA appealed in 2012. The case was stayed pending resolution of Keller .

In Circuit Judge Fisher's view, EA's counsel did not try to distinguish the NFL case from the Keller college football case. Instead, the lawyers raised the same First Amendment arguments to preserve them for review by an en banc panel or the U.S. Supreme Court. The company could face an uphill battle. In September 2014, the Supreme Court declined to review the Ninth Circuit's decision in Keller .

Marisa Kendall writes for The Recorder , the San Francisco-based ALM sibling publication of Entertainment Law & Finance .

Video game litigation is a hot area for entertainment lawyers in 2015, as more celebrities have sued over being cast as game characters without their permission. The spree is driven by a pair of 2013 rulings that sided with athletes depicted in college football games, lawyers said, as well as by the overall boom in gaming sales which has made the industry a rich target for plaintiffs lawyers.

Attorneys who specialize in right-of-publicity cases say they don't see the pace of litigation slowing down this year. But they're also eyeing a handful of cases they hope could slow plaintiffs' momentum and expand First Amendment protections for the depiction of real figures in creative works.

Kelli Sager, a partner in Davis Wright Tremaine's Los Angeles office who specializes in media and entertainment litigation, said over the course of 30 years of practice she was used to seeing an average of one right-of-publicity claim every year or two. “We're now defending, I can think of six off the top of my head,” she said. “So it's a huge amount of litigation.”

Keller v. Electronic Arts Inc. (EA) , 724 F.3d 1268 (9th Cir. 2013), and Hart v. Electronic Arts Inc. , 717 F.3d 141 (9th Cir 2013), both came down in favor of athletes who claimed they were depicted as video game avatars without their consent. The appeals courts found Electronic Arts' portrayal of plaintiffs ' the avatars looked just like the real players and played football where and how the real people played ' was not sufficiently transformative to warrant First Amendment protection.

A subsequent lawsuit was filed last summer by former Panamanian dictator Manuel Noriega, upset over his portrayal in video game Call of Duty: Black Ops II . Former New York City Mayor Rudolph Giuliani appeared in that case for Activision Blizzard Inc. That suit, in Los Angeles Superior Court, was dismissed in October on the grounds that the video-game maker was protected by its right to free expression. The superior court found Noriega's character wasn't a central part of the game and “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 the defendants,” Judge William Fahey wrote. Noriega v. Activision Blizzard Inc. , BC551747.

Right-of-publicity lawyers also wonder if the dismissal had something to do with Noriega's notoriety. (He is incarcerated in a Panamanian prison, serving a sentence for drug trafficking, money laundering and killing political opponents.)

Meanwhile Rockstar Games, the maker of video game Grand Theft Auto V , continues to fight a suit filed by Lindsay Lohan in New York's Manhattan Supreme Court over her alleged portrayal in the game. See , Lohan v. Take-Two Interactive Software , 156443/2014. And in September, intellectual property rights firm CMG Worldwide Inc. filed suit in the Northern District of California against the maker of a World War II video game over its depiction of General George Patton, dead nearly 70 years. See , CMG Worldwide Inc. v. Maximum Family Games LLC , 2014cv05124.

Legends of War Case

CMG, an intellectual property rights firm that represents the estates of dead celebrities, including James Dean, sued over the video game Legends of War: Patton . In Legends of War , players become General Patton as he battles his way “from the blood-soaked beaches of Normandy to the war-torn streets of Berlin,” according to the game's packaging. CMG says it has agreements with the Patton family, who give it the exclusive right to license the general's name and likeness to third parties.

According to the Northern District complaint filed against Maximum Family Games by lawyers in Winston & Strawn's Los Angeles office, the maker of the Patton game “commercially exploited General Patton's name, image and likeness without CMG's consent.” The suit claims Maximum Family violated CMG's right of publicity and engaged in unfair competition.

Court records show that CMG has filed almost two dozen federal cases over the past 10 years involving celebrities and celebrity estates it handles, mostly in California, New York and Indiana, the latter where the company is headquartered. In October 2014, CMG filed a trademark suit against US Specialty Vehicles in the Central District of California over the company's use of Patton's name to market pseudo tanks built from Ford 350 and 450 trucks. See , CMG Worldwide Inc. v. US Specialty Vehicles LLC , 5:2014cv02202.

Contrasting the Noriega ruling with the possible outcome of CMG's suit against Maximum Family, Fenwick & West partner Jennifer Lloyd Kelly commented that the celebrity at issue could indeed play a role in the court's decision. A decorated American general could have an edge over a Central American dictator. “Patton and Noriega,” Kelly said. “Not the same.” A point in Maximum's favor: CMG has to contend with California's 70-year limit on post-mortem publicity rights. In Patton's case, those rights will be up in a little over a year. That will probably put a cap on damages, Kelly said.

CMG seeks treble damages and a disgorgement of profits from Maximum, as well as corrective advertising to fix the “confusion, mistake and deception” allegedly caused by the unauthorized use of the general's brand. “Maximum's conduct has damaged the value to CMG of General Patton's name, image and likeness,” according to the complaint, “has interfered with CMG's ability to license General Patton's name, image and likeness for use in other video games; and has damaged CMG's ability to enforce its rights to General Patton's name, image and likeness against third parties.”

In a blog entry following the Noriega decision, UCLA School of Law Professor Eugene Volokh commented on the confusion around right-of-publicity law. “The trouble is that different courts have drawn different lines,” he wrote. “Roughly speaking, there is authority for at least five different rules.”

Sager is optimistic more courts will follow the Noriega ruling, and consider whether the depiction of real-life characters in a video game is just an element of an otherwise original work. Ultimately, Sager expects the U.S. Supreme Court to weigh in. “It's going to take a high court decision to really clear up the law,” she said. Until then, she is finding it difficult to show her clients where the line is between free expression and infringement.

Video Games and the First Amendment

The Supreme Court provides video games the same protection under the First Amendment as books, films, and other forms of art. But as video games are a relatively new form of media, they have been tricky for courts to figure out how to regulate, said Leonard Aragon, a Phoenix lawyer and partner at Hagens Berman Sobol Shapiro who argued for plaintiffs in Keller . As graphics improve, video game makers can create avatars that look increasingly like the public figures they're intended to portray. But they also have the ability to build alternate universes that transform those public figures in new ways. “I think it creates unique circumstances,” Aragon said, “where you can basically create anything you want.”

Sunnyvale, CA, solo lawyer Brian Henri, who represents retired NFL players who sued EA over its use of their likenesses, said it's become clear this year that the courts view the “transformative use test” as the accepted standard to judge publicity rights in video games, just as in other forms of media. A video game may use a celebrity likeness if it sufficiently transforms the character, which EA's hyper-realistic sports games do not, he claims.

Henri made that argument before the Ninth Circuit in September 2014, while EA lawyer Alonzo Wickers IV of Davis Wright Tremaine countered that test doesn't offer adequate protection to the inherently expressive nature of a video game. He argued a new test should be created that takes into consideration the enormous amount of artistry and design that goes into creating a video game.

Henri said the courts have consistently rejected such “novel” arguments. The characters themselves aren't transformed at all from their real-life inspirations, he argued, and ever-improving graphics just mean the characters become more and more lifelike. “You just can't take someone's likeness and incorporate it into your video game without permission,” Henri said.

Groups like the Electronic Frontier Foundation (EFF; eff.org), which champions free expression, have found themselves in line with the video game makers. EFF staff attorney Daniel Nazer said the “transformative use test” makes sense when talking about an appropriated song or piece of artwork, but not a person. “There's no reason why realistic speech or depiction should be less protected under the First Amendment,” he said.

Hurt Locker and Keller

A Ninth Circuit decision in a case over the war film The Hurt Locker may make the balance between publicity rights and free expression more clear. In Sarver v. The Hurt Locker LLC , 10-cv-09034, an Iraq war veteran has claimed a central character in the 2010 Academy Award winning Best Picture was drawn without his permission from interviews about his experiences fighting in Iraq. The Central District of California dismissed the suit in 2011 under California's anti-SLAPP law.

The appeal, argued in May 2013, could have implications beyond film, for how public and historical figures are used in video games and other forms of media, said right-of-publicity lawyer Lincoln Bandlow of Lathrop & Gage in Los Angeles. “It could dramatically change the entire world of motion pictures, biographies, docudramas,” he said. “The entirety of docudramas will change if it is ruled that a historical person has the right to stop depictions of themselves in films.”

Meanwhile, in January 2015, the Ninth Circuit ruled in favor of the retired NFL players who Brian Henri represents in their suit against Electronic Arts Inc. over their portrayal in the Madden NFL video games. A three-judge panel rejected arguments by EA that the First Amendment protects the company's depiction of the athletes in its multi-billion dollar game franchise. In Keller v. Electronic Arts , “we rejected several of the First Amendment defenses EA raises here on materially indistinguishable grounds,” wrote Circuit Judge Raymond Fisher in a unanimous opinion joined by Judges Stephen Reinhardt and Marsha Berzon. Davis v. Electronic Arts Inc. , 12-15737 (9th Cir 2015).

During the oral arguments before the Ninth Circuit in September, EA lawyer Wickers claimed the retired players' avatars make up just a few of the thousands of virtual athletes in the game and should be protected as an incidental use of the players' likenesses.

But the appellate panel ruled the avatars are vital to EA's main commercial purpose. “Accurate depictions of the players on the field are central to the creation of an accurate virtual simulation of an NFL game,” Judge Fisher wrote.

This litigation began in 2010, when retired NFL players Michael Davis, Vince Ferragamo and Billy Joe Dupree sued EA for infringing their right of publicity. The video game company paid current NFL players licensing fees to use their names, likenesses and uniforms, but did not compensate the roughly 6,000 retired players depicted in its historic teams. EA did not name the retired players in the games, but it created avatars using their skin tone, height, weight, position and skill level.

EA tried to get the suit thrown out in 2011 under California's anti-SLAPP law, claiming it was an attack on the company's right to free expression. Judge Richard Seeborg of the Northern District of California rejected that argument, and EA appealed in 2012. The case was stayed pending resolution of Keller .

In Circuit Judge Fisher's view, EA's counsel did not try to distinguish the NFL case from the Keller college football case. Instead, the lawyers raised the same First Amendment arguments to preserve them for review by an en banc panel or the U.S. Supreme Court. The company could face an uphill battle. In September 2014, the Supreme Court declined to review the Ninth Circuit's decision in Keller .

Marisa Kendall writes for The Recorder , the San Francisco-based ALM sibling publication of Entertainment Law & Finance .