The Third Circuit Upholds First Amendment Defense in Video Game CaseBy Katja Kukielski and Jennifer E. Rothman
October 2, 2020
In a nonprecedential opinion the Third Circuit held that the First Amendment insulates the makers of the video game Gears of War from a right of publicity claim. The case, Hamilton v. Speight, involves a right of publicity claim brought by the plaintiff, Lenwood Hamilton, who alleged that his identity was used for one of the characters in the game. The appellate panel agreed with the district court that even if the video game character in question was based on the plaintiff, the defendants’ use of his identity was transformative, and accordingly protected by the First Amendment.
Hamilton, a former professional football player for the Philadelphia Eagles and a wrestler who performed as “Hard Rock Hamilton,” alleged that the Gears of War character Augustus “Cole Train” Cole was an unauthorized use of his persona. Cole is a fictional soldier who battles reptilian humanoids on the planet Sera. Hamilton alleged that the character was based on him in part because the character plays for a fictional sports teams called the “Eagles,” and wears an outfit that resembles Hard Rock Hamilton’s signature costume and another that looks like a football uniform. Hamilton also alleged that the character looks like him. You can judge for yourself:
Unsurprisingly, both the district court and appellate panel concluded that even if Hamilton’s identity was used, the use was transformative. This presents a classic example of the fantastical types of uses that courts have routinely held transformative. See, e.g., Winter v. DC Comics, 30 Cal.4th 881 (2003) (holding transformative the use of Winter brothers’ identities as half-human, half-wormlike creatures in the Jonah Hex comic book); Kirby v. Sega of America, 144 Cal. App. 4th 47 (2006) (holding futuristic outer-space Ulala character in video game transformative of Deee-Lite’s Lady Kier).
Hamilton originally filed suit in 2017, alleging violations of Pennsylvania’s statutory and common law rights of publicity, as well as an invasion of privacy claim. In September of 2019, the District Court for the Eastern District of Pennsylvania granted summary judgment in favor of the defendants, applying the transformative use test first adopted by the Third Circuit in Hart v. Electronic Arts, 717 F.3d 141 (3d Cir. 2013). A variation of this test was originally articulated by the California Supreme Court in Comedy III Productions v. Gary Saderup, Inc., 21 P.3d 797 (Cal. 2001).
Applying the transformative use test to the Gears of War character, the district court asked whether Hamilton was merely one of the “raw materials” from which the Cole character was synthesized, rather than “the very sum and substance” of that character. Even assuming that the Cole character was based on Hamilton, the court held that, as a matter of law, it was unable to conclude that Hamilton was the sum and substance of the Cole character. In granting summary judgment for the defendants, the court looked to differences between Hard Rock Hamilton’s signature outfit and the Cole character’s various costumes, the biographical differences between Hamilton and Cole, and the contrast between the character’s aggressive personality and Hamilton’s more family-friendly persona. In conducting its analysis, the court highlighted the fictionalized setting in which the Cole character was placed, emphasizing that, as a solider on a fictional planet, Cole does not do what Hard Rock Hamilton does: professional wrestling on the planet Earth.
Affirming the district court’s grant of summary judgment, the Third Circuit looked to the same contextual, biographical, and personality-based differences between Hamilton and the Cole character. While this case should provide some relief to game makers who have been burdened with less favorable First Amendment analyses than in the context of other media, see, e.g., Hart v. Elec. Arts, this case does not involve more realistic depictions that remain in jeopardy under narrow interpretations of the transformativeness test. The First Amendment does not and should not require us to fictionalize public figures in order to be protected.
The court here undoubtedly got the result correct, but the transformativeness test continues to present problems. For those interested in a deeper dive on this issue, Robert Post and I (Jennifer Rothman) have a new article on how to more appropriately analyze First Amendment defenses in right of publicity cases. See Robert C. Post & Jennifer E. Rothman, The First Amendment and the Right(s) of Publicity, 130 Yale L.J. __ (2020) (forthcoming))
Second Amended Complaint, Hamilton v. Speight, No. 2:17-cv-0169-AB (E.D. Pa., April 14, 2017)