First, a bit of background. The “right of publicity” was a judge-made tort, though it has been codified in some states (including California, where the suit has been brought). Here’s the relevant California text:
- “Any person who knowingly uses another’s name, voice, signature, photograph, or likeness,”
- “in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services,”
- except “in connection with any news, public affairs, or sports broadcast or account, or any political campaign,”
- “without such person’s prior consent,”
- “shall be liable for any damages sustained by the person or persons injured as a result thereof.”
The damages can include both emotional distress damages and lost licensing fees, the theory being that if defendant used the name or likeness commercially, it (or someone else) would have paid to use it. California also still recognizes the judge-made tort, which is slightly different but similar. Other states also recognize the judge-made tort, and some states have special statutes that are similar to California’s (though often not identical).
The problem, of course, is that people use others’ names and likenesses in “products” or “goods” all the time, even setting aside the news exception. An unauthorized biography, which is probably not “news” or “public affairs” as such, is a commercial product or good, and uses the name or likeness. So are fiction movies and books that revolve around real events, and include photographs, “likeness[es],” or even just the names of famous people: Think “Forrest Gump” or “Midnight in Paris,” though referring to living people. (California’s right of publicity, like that in many states, also covers dead people, for 70 years after their deaths, but specifically excludes works of fiction and songs and not just news, when dead people are being referred to.) So are songs that refer to cultural items, such as in Paul Simon’s “Where have you gone, Joe DiMaggio?” line, or Pitbull’s “So, I’m toptoein’, to keep flowin’, I got it locked up, like Lindsay Lohan.”
Because of this, courts have held, the First Amendment must impose addition constraints on right of publicity law. The trouble is that different courts have drawn different lines (except as to use in outright commercial advertising for nonspeech products, where courts generally agree the right of publicity is constitutional, and as to the taking of an entertainer’s entire act, as to which the Supreme Court has held the right of publicity is constitutional). Roughly speaking, there is authority for at least five different rules (with “protection” for a certain use meaning that the use can’t lead to liability under the right of publicity):
- Broad protection (in cases such as C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media (8th Cir. 2007)), under which the right of publicity is basically applicable only to commercial advertising and the use of an entire act.
- Protection only for favored media, and some political uses (see the Restatement of Unfair Competition), under which use in “news, entertainment, and creative works,” including fiction, but use on “merchandising” — such as posters, T-shirts, and the like — is not allowed (except perhaps for some parody and political use).
- Protection for “transformative” works (see some California cases) — meaning works in which “the celebrity likeness is one of the ‘raw materials’ from which an original work is synthesized” — but uses in which “the depiction or imitation of the celebrity is the very sum and substance of the work in question” are not allowed.
- Protection for “transformative” uses of a person’s name, photograph, and the like (see other California cases) — meaning uses in which the person’s attributes are somehow distorted or otherwise changed — but uses in which the person’s attributes are used without material distortion are not allowed, even when the defendant’s work contains much more than this person’s attributes.
- Protection for uses that have a “predominant purpose” that is “expressive” (that’s the Missouri Tony Twist case, Doe v. TCI) but uses that have a predominantly “commercial” purpose are not allowed — an especially mystifying test, I think, given how many uses in our free-market system have intertwined expressive and commercial purposes.
The Third and Ninth Circuits have recently basically adopted the transformative use test, in holding that Electronic Arts’ “NCAA Football” video games infringe the rights of the players whose identity attributes are used in the videos. And that’s good news for Noriega’s lawsuit. Consider the heart of the Ninth Circuit’s conclusion in the Keller v. Electronic Arts case that the use of the football players’ identities in the video game was not a “transformative use” (paragraph breaks added):
EA’s use of Keller’s likeness does not contain significant transformative elements such that EA is entitled to the defense as a matter of law. The facts of No Doubt [an earlier California case] are very similar to those here. EA is alleged to have replicated Keller’s physical characteristics in NCAA Football, just as the members of No Doubt are realistically portrayed in Band Hero.
Here, as in Band Hero, users manipulate the characters in the performance of the same activity for which they are known in real life — playing football in this case, and performing in a rock band in Band Hero. The context in which the activity occurs is also similarly realistic — real venues in Band Hero and realistic depictions of actual football stadiums in NCAA Football. As the district court found, Keller is represented as “what he was: the starting quarterback for Arizona State” and Nebraska, and “the game’s setting is identical to where the public found [Keller] during his collegiate career: on the football field.”
Based on a fan account of the game (Call of Duty: Black Ops II), the Noriega character is likewise represented in a realistic context, as someone quite similar to what he was — not an identical character, but also not a (to quote the approach adopted by the Ninth Circuit) “fanciful, creative character” or an “entirely new character.” I haven’t played the game, and maybe in the game there are many more transformative elements to his character (remember, the Ninth Circuit cares about changes to the character, not the broader plot line of the game as a whole, which would be considered under the transformative work test rather than the transformative use test). But at the very least it sounds like Noriega has a credible claim.
Now if I were Activision, I would argue that there ought to be a different rule for uses that refer to important political figures, rather than just athletes or entertainers, or a different rule for uses that are clearly critical of a figure. The Ninth Circuit did say in Keller that “we reserve the question of whether the First Amendment furnishes a defense other than those the parties raise,” so maybe there might be some such “use of a political figure” defense or a “critical use” defense, even in the absence of a “transformative use.” And the Ninth Circuit might indeed be open to recognizing a still broader defense, such as the “broad protection” approach. The quote I just gave cites to a passage in Hilton v. Hallmark Cards, which says,
We address only defenses that Hallmark raised, and leave for another day the question of whether the First Amendment furnishes a defense to misappropriation of publicity that is broader than the transformative use or public interest defenses.
Still, the Noriega claim is surprisingly strong, given the Keller precedent.
And, as I noted earlier, this is not limited to video games. Keller began with an acknowledgment that video games are fully protected, and stressed that its analysis applies to “expressive works” generally:
Video games are entitled to the full protections of the First Amendment, because “[l]ike the protected books, plays, and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world).” Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2733 (2011). Such rights are not absolute, and states may recognize the right of publicity to a degree consistent with the First Amendment. Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 574-75 (1977) [a TV news case -EV]. In this case, we must balance the right of publicity of a former college football player against the asserted First Amendment right of a video game developer to use his likeness in its expressive works.
So Noriega and others like him could similarly sue over uses of their names, photographs, or likenesses in movies, in graphic novels, in ordinary novels, in songs, and elsewhere. An unjustifiable situation, I think, which poses serious risks for speakers in fields far outside video games — but unfortunately the situation we find ourselves in, given recent cases such as Keller and Doe v. TCI.
For a 2003 article of mine on the subject, see here; for my amicus brief in the Tony Twist case, see here.