A Primer on Rights in Video Game Avatars

But whether a game character looks like a celebrity or not, the rights of publicity protect both the famous and the pedestrian just like in traditional forms of entertainment. If someone's name, likeness, catchphrases or even dance moves have been used in a video game without proper approval, there's a chance their publicity rights were violated.

Recent lawsuits have grappled with the fair use of one's likeness in video games, attempting to apply established order to a changing field. Every state has its own regulations intended to protect someone's likeness, voice and image. In Texas, for example, the common law right of publicity known as "misappropriation of name or likeness" exists only for the living, with a separate statutory right of publicity law for the deceased. Tex. Prop. Code §26.001 et seq. This is based on the Restatement (Second) of Torts, §652C, which states that one who appropriates for his or her own use or benefit the name or likeness of another is subject to liability to the other for invasion of their publicity rights. Matthews v. Wozencraft, 15 F.3d 432 (5^th Cir. 1994), further sets forth the elements of a misappropriation of likeness claim in Texas: 1) the defendant appropriated the plaintiff's name or likeness for value, and not in an incidental manner or for a merely newsworthy purpose; 2) the plaintiff can be identified in the defendant's publication; and 3) there was some advantage or benefit to the defendant.

There may also be copyright issues to pursue. In February 2019, professional wrestler Booker T. Huffman filed suit in the U.S. Eastern District Court in Texas against video game companies that produce the highly successful Call of Duty games. Huffman v. Activision Blizzard Inc., 2:2019cv00050. Huffman created a comic book series in 2015 called G.I. Bro based on Huffman's likeness, wrestling character and personal experiences. Huffman alleges that G.I. Bro's likeness and backstory form the basis of a very similar character "Prophet" in the 2018 video game Call of Duty: Black Ops III and Black Ops IV. Black Ops IV sold over $500 million worth of copies in just its first three days of release. Huffman alleges copyright infringement. In February 2020, the district court denied the defendants' motion to dismiss by noting: "Because a side-by-side comparison of the works identified in Plaintiff's complaint are sufficiently similar to plausible allege striking similarity, Plaintiff has adequately pleaded copying."

But what about the unique avatar creations of video game players? Does a gamer hold rights to the unique, fictional avatars they create using the gaming software? Does a gamer have the same right to their creations as someone who makes art with LEGOs?

Gamers create avatars and names that may be their own intellectual property. There are even online marketplaces where gamers trade self-created avatars and virtual real estate. For example, self-made millionaire Jon Jacobs (his gamer name is "NEVERDIE"), purchased a virtual nightclub in the online game Entropia Universe for $100,000, which he later sold for $635,000, but not before making $200,000-$250,000 a year from other gamers who paid to visit the virtual nightclub. As depicted in Ernest Cline's sci-fi novel Ready Player One, virtual marketplaces hold the potential for new economies dedicated to entirely intangible goods.

This is a new area of law to navigate. A case in China is important to note. In September 2019, Chinese citizen Lu Mou sued his friend Li Mouscheng for selling Lu's self-created avatar for drastically below market value. Lu spent over the equivalent of $1.4 million developing his avatar for the popular game Justice Online. Without Lu's permission, Li sold the personalized avatar on a virtual goods marketplace for only 3,888 yuan (around $550). The judge ordered the return of the avatar to Lu, indicating not only the court's recognition of the value of a player-created avatar but also the legal ownership of intangible intellectual property.

Truly the world — or more accurately, the worlds — are changing. As the processing power, resolution and frame rates of personal computers and gaming platforms increase, the lines between the real world and the gaming world will continue to blur. Much like the fears of "DeepFake" videos, the increasing ability of video games to create realistic portrayals opens up the potential for abuse. And the growing palette available through virtual creation tools will also result in an explosion of creative content that may have value outside of the host game. As we all learn to navigate this new world of created realities, we must keep in mind the very real consequences, and the very real currency that may be exchanged — or lost — as a result.

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Andrea Perez is a senior associate at the Texas firm Carrington, Coleman, Sloman & Blumenthal, and an adjunct professor at Southern Methodist University, teaching International Law and the Arts. Perez concentrates her practice in the fields of art law, intellectual property and business law.