NFL players and their financial planners will be carefully watching the recent lawsuit filed by actress Lindsay Lohan against Rockstar Games, which alleges that Rockstar Games violated LiLo’s state law publicity rights by using a variation of her likeness in the video game Grand Theft Auto V.
EA Sports pays this licensing fee based on the strong legal presumption that using players’ likenesses without obtaining a license would mark of violation of their publicity rights. In addition, purchasing an exclusive license to use the players’ names and likenesses is presumed to grant Electronic Arts a legal monopoly over NFL-themed videogames — making these rights especially lucrative.
Nevertheless, the exact contours of celebrities’ publicity rights in videogames are not entirely well defined.
In the 2006 lawsuit, Kirby v. Sega of America, Inc., the California Court of Appeals held that the First Amendment protected Sega’s incorporation of the attributes from singer Kierin Kirby into the character Ulala — “a young, fictional, elongated and extremely thin female reporter” who in the videogame was presented in anime and worked as an outer space reporter in the 25th century. According to the Kirby court, Sega’s use of Kierin Kirby’s likeness was “transformative” and thus protected by the First Amendment because of certain dissimilarities in the avatar’s physique, hairstyle, and situational appearance.
By contrast, in No Doubt v. Activision Publishing, Co. the California Court of Appeals held that videogame publisher Activision had impermissibly used the band No Doubt’s likenesses because Activision’s game involved “computer-generated recreations of the real band members.” Meanwhile, in Hart v. Electronic Arts the U.S. Court of Appeals for the Third Circuit held hat EA Sports’ use of college football players’ likenesses in its videogame violated right of publicity law because the likenesses with near literal depictions of the actual athletes.
The purported use of Lindsay Lohan’s likeness in Grand Theft Auto V clearly does not present one of the easy cases such as No Doubt or Hart where there existed little, if anything, transformative about the use of a celebrity’s likeness.
But at the same time, the similarities between the Grand Theft Auto V character and Lindsay Lohan might not be much greater than that of Kieran Kirby and a futuristic anime reporter.
It will thus be interesting to see what a court decides.
Marc Edelman is an Associate Professor of Law at the City University of New York’s Baruch College, Zicklin School of Business, where he has published more than 25 law review articles on sports law matters, including “The Case for Protecting College Athletes’ Publicity Rights in Commercial Video Games.”
In addition, he is an adjunct professor at Fordham Law School, and a legal consultant on sports, antitrust, gaming and intellectual property matters. Nothing contained in this article should be construed as legal advice.
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