As anyone who plays video games these days knows, computer-generated representations of real people have become both increasingly commonplace and incredibly realistic. So much so, that a new area of litigation has emerged: right of publicity lawsuits for the unauthorized use of a person’s likeness in a video game.

Right of Publicity Law

The basic idea of the right of publicity is quite simple. Under the laws of most states, a person has the right to control the commercial use of his or her identity or “likeness.” This right encompasses all of a person’s distinctive characteristics, e.g., the sound of a chanteuse’s voice; a basketball star’s former name; or even a race car driver’s distinctive racing car. Traditionally, right of publicity lawsuits have been filed over unauthorized uses of a celebrity’s likeness in advertisements (usually television commercials):

The goal of right of publicity laws is to protect the right of the individual to reap the reward of his or her endeavors and to prevent unjust enrichment by the theft of that individual’s good will.

Recent High-Profile Cases Involving Video Games

Increasingly, the right of publicity has been utilized in lawsuits involving video games.

On November 4, 2009, the band No Doubt filed a lawsuit against game publisher Activision Blizzard, claiming, among other things, that Activision wrongfully misappropriated the likenesses of the band’s members. Although No Doubt had contractually agreed to have its band members appear as in-game “avatars” in the game Band Hero for certain uses, No Doubt’s complaint alleges that Activision wrongfully extended the involvement of the band’s avatars to other, unauthorized uses.

On May 5, 2009, former Arizona State University quarterback Sam Keller filed a class-action lawsuit against game publisher Electronic Arts on behalf of himself and all NCAA student athletes. Keller’s complaint alleges that: “despite clear prohibitions on the use of student names and likenesses in NCAA bylaws, contracts and licensing agreements, Electronic Arts utilizes the likenesses of individual student-athletes in its NCAA basketball and football video games to increase sales and profits.”

First Amendment vs. Right of Publicity

The reason these new lawsuits are so intriguing is because of a tension that exists between a celebrity’s right of publicity and the first amendment’s goals of fostering a marketplace of ideas and protecting individual expression. As one Court said, “[v]ideo games are expressive works entitled to as much First Amendment protection as the most profound literature.” (And gamers cheered: take that, Jane Austen!)

To resolve this tension, courts employ an extremely nebulous test: “The inquiry is whether the celebrity likeness is one of the ‘raw materials’ from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question.” In other words, the First Amendment trumps a celebrity’s right of publicity if the video game adds significant new expression to its use of the celebrity’s likeness.

Resolving this question is necessarily a judgment call based on the particular facts of each case. In the No Doubt and Sam Keller cases, it is still too early to predict a clear winner, but at first blush, the celebrity depictions in both games appear to lack sufficient “new expression” to warrant First Amendment protection.

Still, reasonable minds can differ and the precise contours of First Amendment protection for video games are hardly set in stone. On April 26, 2010, the Supreme Court agreed to decide whether states can prohibit the sale of overly-violent or overly-sexualized video games to minors. How the Supreme Court’s coming decision will affect right of publicity cases remains to be seen, but it brings to mind Justice Cardozo’s famous words:

“The law never is, but is always about to be.”