(Photo: “Call of Duty Black Ops” Secret Stage)

The Comet’s legal eagle Gary Stiffelman explores First Amendment law and how it affects artists. Where is the line between free-speech rights and a person’s right to control his or her image?

I’ve been playing “Call of Duty: Black Ops,” and there is a game inside the game in which you play as John Kennedy, Robert McNamera, Fidel Castro or Richard Nixon, fighting Zombies in the War Room of the White House (yes, it’s actually that cool). I had just been forwarded an article about a lawsuit filed by Sam Keller, a former quarterback at Arizona State and Nebraska, against the NCAA and EA Sports for the unauthorized use of his likeness in the NCAA Football game. While EA doesn’t use the players’ names, they are identified by positions and jersey numbers. They also use different hometowns, but in the actual home states.

In thinking about this piece, I also recalled the lawsuit filed by No Doubt against Activision for the unauthorized use of the band’s images in the Rock Band game.  The case of No Doubt and Rock Band is likely going to be decided on the basis of contract interpretation, because in that situation there was a written agreement between the parties.
So in the absence of written contracts, what is the law in this area?

Essentially, it centers around two issues: First Amendment and something called the Right of Publicity. The former protects the right to speak, or the right to free expression of ideas, which includes the right to make books, movies, TV shows and possibly video games. The latter provides in essence that the name or likeness of an individual (celebrity or otherwise) cannot be used commercially without permission. The simplest form of commercial uses involve putting a person’s face on a t-shirt or can of tuna, or using their name or likeness in an ad or commercial for a product or service.

It has been established that even the First Amendment has limitations, including commercial speech, which limitations permit Right of Publicity claims to prevail. I will slide by the more complex question of whether a right of publicity exists outside of jurisdictions like California where it is established by statute (civil code 3344).

The law has long held that authors of books can depict real-life people without permission, otherwise we wouldn’t have the whole industry of unauthorized celebrity biographies (and Kitty Kelley wouldn’t have a career). Similarly films like “Forrest Gump” and “Zelig” have long been permitted the use of real people as characters.

The question not yet tested is whether the same rules apply to video games.  Are they purely content, like a book, or merchandise, like a t-shirt or can of tuna?

Intriguingly, games like EA’s “Madden Football” have always operated with licenses from the organization holding rights to the player’s names and likenesses for merchandising purposes, in that case, the NFL and the players association. In the case of the NCAA, the license between EA and the NCAA doesn’t grant rights to use the players’ names or likenesses.  But the NCAA hasn’t sought to prevent the use either. 
The use of the player’s names arises when the user downloads team lineups, which identify the players whose numbers are on their jerseys.

The judge in the NCAA case denied a motion to dismiss on the grounds of the First Amendment defense stating that the images of the players were NOT sufficiently “transformed” to establish a clear Free Speech defense.

This “transformative” concept was established in a case in which an artist, Gary Saderup, sold merchandise with his charcoal drawing of the Three Stooges. The court decided that Saderup wasn’t entitled to First Amendment protection. Essentially, the court concluded that if a work “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message,” then it is sufficiently transformative to garner its own protection. It’s a subjective test, dependent on the judge’s determination of whether the artist is doing more than relying on the fame of the celebrity alone, or enhancing it with his or her own contributions.

For obvious reasons, it’s not a test than can be uniformly applied. Johnny and Edgar Winter lost a right of publicity case against a comic book that depicted characters that looked like them but were part worms. The court determined that the artist was not relying on the underlying fame of the Winters. Keirin Kirby lost a case against Sega which had created a character called Ulala, in many physical respects similar to her, for a game entitled “Space Channel 5”.  The court again deciding that Sega had significantly transformed the character of Ulala to merit First Amendment protection.

The decision denying the dismissal of the NCAA case concluded that “EA does not depict Plaintiff in a different form; as he is represented as what he was: the starting quarterback for Arizona State University.”

While this determination alone didn’t establish that the player had a right of publicity claim, it concluded that the defendant couldn’t obtain a dismissal purely on First Amendment grounds.

Intriguingly, the whole “transformative” issue originally arose where the use itself was not in a form of traditionally protected speech, as in a book or movie, but where the use of the likeness was on merchandise (lithographs and t-shirts).

Applying this concept to a game continues to blur the line.

The NCAA case merits consideration by the US Supreme Court, regardless of the outcome in the U.S. District Court for the Northern District of California. These issues are only going to become more and more complex and to the extent the law swings in favor of the First Amendment, the protection of an artist’s persona will become more and more problematic.