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A Look at Right of Publicity Suit Over <i>Gears of War</i>
Since the humble beginnings of Pac-Man and Pong, video games have continued to evolve and incorporate all facets of popular culture. Games today are commonly endorsed by, or contain the likenesses of, celebrities from NFL figures to reality TV starlets like Kim Kardashian. What happens though, when a video game features the defining characteristics of a celebrity, without receiving permission from that person?
Celebrities who are fiercely protective of their image and branding fight back, bringing an increasing number of lawsuits when it appears that a video game creator has borrowed without permission. These right of publicity cases highlight the tension that exists between the rights of public figures to control the way their image and likeness is used in commercial contexts and the First Amendment, which protects the rights of authors to develop creative expression.
In 2013, the case of first impression from the U.S. Court of Appeals for the Third Circuit based on a New Jersey right of publicity claim demonstrated that courts across the country aren't dismissing these plaintiffs out of hand, but success on the merits is an uphill battle. See, Hart v. Electronic Arts (EA), 717 F.3d 141 (3d Cir. 2013). Within the Third Circuit, a 2017 right of publicity case worth tracking is based on a video game and before a court in the Eastern District of Pennsylvania. This time, the complaint is based on Pennsylvania right of publicity claims. See, Hamilton v. Speight, Docket, 17-cv-00169 (Jan. 11, 2017).
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