Publishers are Free to use Athlete and Celebrities in Video Games without Permission

In Brown v. Entertainment Merchants Association (2011), the Supreme Court stated unequivocally that video games are entitled to the same broad First Amendment protections as those afforded to other media. But just as laws and regulations distinguish newspaper, magazine and television content from the advertising sold in those media, new policies are required to distinguish the communicative content of video games, virtual worlds and social media from the advertising and commercial purpose activity conducted in those media. Particularly in the area of publicity rights, states and courts have struggled to delineate those contours.

This article explains the emerging contours of commercial speech under recent First Amendment jurisprudence, highlighting the free speech rights of publishers, participants and players while shielding individuals from unfair commercial exploitation and protecting the public from misleading advertising.

By comparing the court decisions and statutes involving state publicity rights to the regulations of the FTC regarding commercial endorsements and the FCC involving broadcast advertising and sponsorships, states and courts can more carefully delineate what is appropriate for publicity rights and endorsements in video games, virtual worlds and social media.

What may be the most surprising aspect of this analysis is that the use of a sports figure or celebrity in a video game or virtual world should be treated as fully protected speech and those identities are free for the publisher and player to use. Recent cases involving Sam Keller, Ed O’Bannon, Ryan Hart have highlighted such unauthorized use. Only when the celebrity or athlete’s identity is used to sell some goods or services – other than the game itself – do the rights of publicity properly come into play. Of course, there are many good business reasons for acquiring the license and cooperation of celebrities, so the legal dispute will likely affect only controversial content of the licensing of athletes governed by the NCAA.


2 thoughts on “Publishers are Free to use Athlete and Celebrities in Video Games without Permission

  1. T-shirts create the true hybrid chattle – part utilitarian object; part canvas (or billboard). But a consumer of a t-shirt expects it to hold up in the wash. If the shirt is not transformative or obviously produced by a third party under in a fair use context, the consumer has reason to expect some quality control from the celebrity shown (or owner of a copyright/trademark displayed for that matter). Long after the hang-tag has been deleted, the association between person and shirt will remain.

    So the message is undoubtedly speech, but the medium has all the attributes of any utilitarian good. As such, the threshold for fair use should be quite low, but it should not be treated entirely as a medium. In addition, there is a legitimate business concern of free-riding by which manufacturers are benefiting from the good will of the person depicted. Publishers are serial participants so the market can react to shoddy conduct, but the t-shirt producer is generally not so constrained. Admittedly, publishers free-ride on the good will of their targets as well, so it may be that we accept free-riding as the cost of free speech in some settings, but not in others. The difference is the free-riding in the t-shirt context involves the utilitarian object.

    I feel the same regarding coffee mugs and lunch boxes. Iron-on transfers, however, (with the wearer supplying the shirt) should only be speech.

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