Real People in Video Games: 1st Amendment vs. Right of Publicity

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As a general rule, the name, image or likeness of a living person–not necessarily just a celebrity–cannot be used for commercial purpose without his/her written consent. Some jurisdictions have extended the coverage to provide additional protection to such elements as signature, voice, mannerisms or even expressions. Unauthorized use of an individual’s name, likeness or image may violate his/her right of publicity, which is currently recognized by statute, common law, or a combination of both in 31 states.1

However, as each state’s law evolved separately, there are often significant differences in the coverage provided. Specifically, New York and California, the key states for rights of publicity due to their many celebrity residents, protect different rights and are diametrically opposed on whether these rights extend beyond death.

In the past few years we have seen a paradigm shift in the
technology used to create video games. The current video game iterations allow for nearly photo-realistic imagery and, in some cases, use this
to allegedly depict real people in the games. However, not all of these
video games have entered into licensing arrangements with the parties
allegedly depicted. From this we have witnessed the commencement of a
new body of case law involving right of publicity claims against video
game makers. The video game companies have countered the claims by
alleging, among other things, that video games are creative works and
protected by the First Amendment.

To learn more about this emerging issue, please click HERE.