Since the humble beginnings of Pac-Man and Pong, video games have continued to evolve and incorporate all facets of popular culture. Now, games are commonly endorsed by or contain the likenesses of celebrities from NFL figures like John Madden, to reality TV starlets like Kim Kardashian. What happens though, when a video game features the defining characteristics of a celebrity, without receiving permission from that person? Celebrities who are fiercely protective of their image and branding are fighting back, and bringing lawsuits when it appears that a video game creator has borrowed without permission. These cases are based on the right of publicity, a cause of action rooted in state law. Right of publicity cases highlight the tension that exists between the rights of public figures to control the way their image and likeness is used in commercial contexts, and the First Amendment which protects the rights of authors to develop creative expression.
A recent Third Circuit case of first impression based on a New Jersey right of publicity claim demonstrates that courts across the country aren’t dismissing these plaintiffs out of hand, but success on the merits is an uphill battle. Hart v. Elec. Arts, 717 F.3d 141 (3d Cir. N.J. 2013). Currently, a new right of publicity case based on a video game is before a court in the Eastern District of Pennsylvania. This time, the complaint is based on Pennsylvania right of publicity claims. Hamilton v. Speight, Docket No. 2:17-cv-00169 (E.D. Pa. Jan. 11, 2017). This article will first discuss Hart, with a focus on right of publicity claims in Pennsylvania. Then, it will apply the lessons of Hart to the pending Hamilton case, and provide tips for counsel bringing and defending a right of publicity claim.
