The Challenge of Sports Gaming: Balancing the Right of Publicity with the First Amendment
The rapid growth of the video game industry in recent years has led to a rise in right of publicity claims stemming from the unauthorized use of a celebrity’s persona.[1] Although each state defines the right differently, the right of publicity is broadly construed as “an individual’s right to protect her name and persona from commercial exploitation.”[2] In other words, a person has a right to control the commercial use of his name, image, or likeness.[3]
Right of publicity claims are particularly prominent in the case of athletes in sports games. Sports gaming is simulation gaming, where players take on the role of manager or player within the game.[4] The characters and their attributes are based on accurate data and information to enable players to interact with athletes in their natural, realistic environment.[5] Unlike other games, where the avatars and stories are primarily fictional, sports games are dependent on a real connection to a particular sport.[6]
As the quality of game graphics has increased and become more realistic, the likelihood of a gaming avatar resembling celebrities and infringing the right of publicity has correspondingly increased.[7] Game developers, however, claim the First Amendment right to free speech protects their use of the celebrity’s likeness.[8] The question, therefore, is how courts should balance the right of publicity against competing constitutional interests.[9] A circuit split has emerged leading courts to primarily consider and apply three tests in right of publicity claims: the Rogers test, the transformative use test, and the predominant use test.[10]
The first test, used by the Second Circuit, is the Rogers test.[11] The Rogers test analyzes the relationship between the celebrity image and the work as a whole.[12] The court’s principle concern is whether the developers are using the celebrity’s likeness as a disguised commercial advertisement for the game.[13] That is, that the use of the celebrity’s name might constitute a “false and misleading impression that the celebrity is endorsing a product.”[14] However, the Rogers test was conceptualized for the film industry, and is focused on movie titles rather than graphics, and on consumer confusion rather than publicity.[15]
The second test, used by the Ninth Circuit, is the transformative use test.[16] The transformative use test determines whether the game’s expression of the celebrity sufficiently transforms the person’s likeness.[17] However, the transformative use test is vague and unpredictable, as it is unclear what constitutes transformation, and what level of transformation is sufficient to trump a right of publicity claim.[18] The test is subjective in nature and the court must determine whether they believe the work in question adds something new and alters the first expression such that those modifications were sufficiently transformative.[19]
The third test, used by the Eighth Circuit, is the predominant use test.[20] The predominant use test determines whether the “product predominantly exploits the commercial value of an individual’s identity” or is merely an expressive comment about a celebrity.[21] It looks at the purpose of the art in question. However, the predominant use test is overly subjective, if not completely arbitrary, and is therefore inconsistently applied.[22]
The Supreme Court must establish a uniformly applicable First Amendment standard to balance against state law publicity claims. In light of the concerns regarding the Rogers test, any test should be directly applicable to the video game context as the proper balancing of the right of publicity with the First Amendment depends on a specific medium.[23] As to the concerns regarding the transformative use test, the new test must establish a line at the point where an athlete’s likeness is immediately and definitively identifiable.[24] Finally, given the shortcomings of the predominant use test, the new right of publicity test must be capable of consistent application so developers and celebrities alike can anticipate the consequences of the use of likeness.[25]
There is a need for a test that addresses these concerns and effectively balances First Amendment concerns and the right of publicity in the sports video game industry. For game developers, the incentive to use celebrities’ likeness decreases significantly because of the inability to anticipate whether their product will violate an individual’s right of publicity.[26] For celebrities, it decreases the incentive to achieve fame and fortune if they cannot prevent the appropriation and exploitation of the value created by the fame.[27] In this respect, all concerned parties would benefit from a more clearly defined standard.
Footnotes
