There are so many fun things you can do with celebrities. In addition to the traditional things like writing books about them, you can also use their catchphrases to make greeting cards; make movies about them using puppets; or even use claymation television to have them fight each other to the death. But what about including digital representations of them in a video game?
A new case reinforces the holding of a previous case which stands for the proposition that you can’t put celebrities in a video game and then have them do exactly what they normally do in real life. (For example, a game like “Lindsay Lohan: Escape from Rehab” simply would not work).
Unfortunately, the case also sets a bad new precedent.
The case in question is called Hart v. Electronic Arts and represents a dangerously subtle evolution in right of publicity law. In a 2-to-1 decision, a three judge panel ruled that various NCAA Football games, made by Electronic Arts (EA), did not “sufficiently transform” the identity of a college football player named Ryan Hart to escape his claim that EA violated his right of publicity.
At first blush, it seems that the 3rd Circuit simply copied the “transformative use test” used by the 9th Circuit. Upon closer inspection, however, it becomes apparent that the 3rd Circuit took the analysis one step further.
The majority began its analysis by reasoning that “[t]he digital Ryan Hart does what the actual Ryan Hart did while at Rutgers: he plays college football, in digital recreations of college football stadiums, filled with all the trappings of a college football game.” The majority opinion then chastised EA for seeking to increase profits by capitalizing “on the respective fan bases for the various teams and players” by creating “a realistic depiction of college football for the users.” However, as the dissenting judge recognized, the inclusion of realistic player likenesses to increase profits should have nothing to do with First Amendment protection. In fact, by making such a distinction, the result is a “medium-specific metric that provides less protection to video games than other expressive works.”
In his dissenting opinion, Judge Thomas Ambro argued that EA’s use of real people as “characters” in its sports games should be treated the same way as portrayals of individuals (fictional or nonfictional) in movies and books. (After all, who would want to play Tim Tebow in a football game if you couldn’thave him get down on one knee and start praying?) Along these lines, when an author writes a historical novel, biography, or other book inspired by or involving famous people, the First Amendment protects the author’s right to realistically portray those people. The same protection applies to filmmakers. When Oliver Stone made the biographical film “W,” about former President George W. Bush, an obvious goal of the film was to have Josh Brolin’s portrayal of George W. Bush as realistic as possible to increase the likelihood of satisfied movie-goers. (Naturally, this required pronouncing the word nuclear “nuke-ya-lure,” and including lines like “Whose job is it, to find these damn weapons?” and “I believe God wants me to be president!”)
To be clear, Judge Ambro does not suggest that the First Amendment should protect all digital portrayals of real people, but simply those in which the likeness, as included in the creative work, has been transformed into something more or different than it was before. This is the test used by the 9th Circuit. It is also the test articulated by the majority opinion.
Why, then, did the majority end up with a different conclusion than the dissent?
In a footnote to his dissenting opinion, Judge Ambro observes that when the transformative use test was originally developed, California’s Supreme Court borrowed the concept from the “purpose and character of the use” factor relevant to a copyright fair use defense. In Judge Ambro’s view, the majority opinion permitted “another fair use factor to creep into their transformative analysis.” Specifically, he observes that the majority also considered the fourth fair use factor, i.e., “the effect of the use upon the potential market for or value of the copyrighted work.” Judge Ambro concludes his footnote by pointing out that the California Supreme Court expressly excluded this factor when it originally developed the transformative use test in the famous Three Stooges Case.
Yet, the problem remains; an uninvited fair use factor regarding marketability which has no business in a transformative use analysis. At least in the 3rd Circuit.
In the meantime, video game developers would do well to heed the message in this case: It is risky to include super-realistic, digital representations of celebrities or athletes in a video game engaging in their normal behavior. The safest thing to do is change the celebrity’s actual appearance, behavior, and context in which the celebrity appears. Changing just one of these things—e.g., context—may not be enough.
For example, in the No Doubt case, simply putting a rock band into a fanciful context like outer space did not render the use of the band’s likeness transformative because the band still looked like the band and still did all the same things the band normally did. By comparison, Kirby v. Sega taught us that the transformative test is satisfied if you give a celebrity a new name, a new appearance, and the lovable story of having been “dispatched to investigate an invasion of Earth by dance-loving aliens who shoot earthlings with ray guns, causing them to dance uncontrollably.”
In the end, what bothers me most about the Hart v. Electronics Arts opinion is a throw-away point raised by an amicus brief. The section of the brief highlighted by the court reads:
“Under [EA’s] application of the transformative test, presumably no infringement would be found if individuals such as the Dalai Lama and the Pope were placed within a violent ‘shoot-em-up’ game, so long as the game included a ‘mechanism’ by which the user could manipulate their characteristics.”
Why did the court highlight this point? It seems to imply that a video game cannot realistically depict celebrities in any context, even if their behavior is abnormal or uncharacteristic. Although the court did not expressly make such a statement, the “concern” it evinced is distressing.
I suppose that if anything is clear, it’s that these judges need to start playing more video games.