Likeness & Lawsuits - Including Real World People & Brands in Your Game - Extra Credits

Many of us play games to be transported to fantastic new worlds, but games, like any artistic medium, can also help us reflect on the real world as well. And we're all for developers leveraging real-world brands or referencing real people to give their games a sense of realism. But what about those people whose property or likeness appears in a game? Do they get credit, payment, or exposure? And in the US anyway, how does this all fit with the First Amendment? Intellectual property law can be a big source of anxiety for game developers. It's also way too complicated to cover in a single video. So we've once again called upon the help of our video game lawyer pal Joe Newman. And then he brought in his pal Rebecca Fuchs, both of whom from the firm of Fenwick & West to help out. Thanks so much, old lawyer friend and new lawyer friend. For a digestible introduction, we're focusing on just two areas: trademarks and the right of publicity in the United States.

So we're not talking about copyrights, which protects things like visual art, animation, music, source code, etc. And we're also not talking about patents, which protect useful inventions like a big arrow that tells you where to go in a driving game. I know, it's crazy that that's a real patent. Oh, and I almost forgot. While we're disclaiming things, you know the drill. These are just Joe and Rebecca's opinions, not giving legal advice or speaking on behalf of any company or client. Talk to your non-animated lawyer friends about questions, blah blah blah. Okay. So first, we're talking about trademarks. Trademarks can be logos, words, names, jingles, product designs, even smells. Anything used to identify the source of products or services. Trademarks tell consumers who manufactures a good or who provides a service. And as a registered trademark holder, if you can show someone used your mark inappropriately, for instance to sell counterfeit products or pretend you endorse something you didn't, you can sue to stop them. Meanwhile, the The of publicity is something that belongs to a person, not a company. You have this right whether or not you're famous, and

in some states, even if you're dead. This right is about your likeness, the way you look or sound, your signature, or some other je ne sais quoi about you that makes you you. It's the right of a person to control the use of their own identity. If someone uses your likeness without your permission, especially if it's to sell something, you can sue to stop them. Now, at this point, you may be thinking to yourself, "Wait a minute. What about the First Amendment?" Well, people often confuse the First Amendment with a blanket right to say just about anything without consequence. Obviously, that's not true, or else I could just say that the in Super Mario Brothers are totally secretly funded by and Big Pharma to on Italian plumbers, and Miyamoto was totally in on it. And while the First Amendment definitely does apply to games, the Supreme Court made that very clear, thank you very much, its power is weaker in the context of for-profit video games. So, the question is, in the world of video games, how do courts square the First Amendment against trademark and right of publicity?

Honestly, the answer is very differently. In the world of trademarks, the First Amendment gives strong protection to video games, and this is because courts apply a thing called the Rogers test. Oh, no, uh sorry, not uh that Rogers test, a different one. The Rogers test asks first, "Is the use of the trademark, {quote} artistically relevant, {unquote} to the game?" In practice, that's a pretty low bar. For instance, a court found that it was artistically relevant to include Humvees in Call of Duty, since they furthered CoD's artistic goal of realism and lifelikeness. Next, even if the use is artistically relevant, the court will have to ask if the use explicitly misleads the consumer into thinking that the trademark holder endorses the game. And that's a really high bar. The trademark owner has to show the developer not only used their mark, but also that the use would lead players to think the trademark owner endorsed the game. This adds up to a pretty favorable field for developers. On the other hand, for right of publicity cases, the First

Amendment is not going to shield the game quite as easily. This is perhaps in part because one's identity is so personal as opposed to a company brand. And further complicating things, rights of publicity are different in every state. No one federal law defines them. Generally, if you're looking to put a real person's likeness into your game under US law, you should ask yourself these three questions. Question one, does it actually look like the person? This is where a lot of big name cases fall apart. For example, when Lindsay Lohan sued GTA or when the lead singer of Delight sued the makers of Space Channel 5. A court said, "Hmm, this celebrity might have been a raw material inspiring the character, but it doesn't look quite like them. So, case dismissed." The takeaway there, vary your influences. If your character doesn't need to look like a real-world person, avoid yourself some trouble and change the design. Question two, how prominent is the person's likeness in the game? Is it a big part of the game? Is it being used for marketing? If so, that's riskier. Question three, how much

are you transforming the person's likeness? Here's where the law is most unclear. Are you using the person's likeness in the same context that they're famous for or in a new creative way? In other words, are you simply ripping off that person's act? One example, in the only right of publicity case ruled on by the US Supreme Court, a man famous for being a human cannonball was able to stop the news from broadcasting his act. Heck yeah. The court held that the broadcaster was simply displaying the entire act rather than putting their own spin on it. Though on the flip side, there was the time that Manuel Noriega tried and failed to successfully sue Call of Duty for depicting him as a capture target. Yeah, the in-game character looked like him, but because the game used his likeness as part of a larger fictional narrative and also since his inclusion was such a small part of the game and not used for advertising, the court found it transformative and let it go. Now, there still aren't a ton of cases on transformative use in games, so we'll just reiterate, tread carefully. But we do hope this gives you a taste of the

difference between trademark and right of publicity. Because although these rights may seem the same, they protect different things and weigh differently on the first amendment. Now you have one more way to show off at all of those lawyer parties you go to, maybe. And of course, if you're a developer and you're worried, it never does hurt to talk to a lawyer or get a publicity license to go along with any other rights you're buying. We promise, it's not as hard as you think. And if you get lost in the weeds, Joe and Rebecca's bio links are in the description and they'd be happy to help out. Until next time everyone. A big legendary thanks to Ahmed Ziad Turk, Alicia Bramble, Casey Muscha, Dominic Valenciana, Gunner Clovis, Kyle Murgatroyd, and Orioles One.