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?
[sound indicating disgust]
and, in the US anyway, how does this all fit with the First Amendment?
[Extra Credits theme music]
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
videogame lawyer pal Joe Newman
And then he brought in his pal Rebecca Fewkes, 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 are 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; any "thing" used to identify the source of products or services
Trademarks tell consumers who manufactures are 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 right 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 [REDACTED] in Super Mario Brothers
are totally secretly funded by [REDACTED] and Big Pharma to s[REDACTED]
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, eh — sorry. Not that Rogers test, a different one!
[nervous laughter]
The Rogers test asks first: is the use of the trademark "artistically relevant" 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 life likeness."
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 Deee-Lite 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 tonne 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, baby!
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, Alesia Bramble, Casey Muscha, Dominick Valenciana, Gunnar Clovis,
Kyle Murgatroyd, and ORELS1.