Academic journal article Washington and Lee Law Review

Frank Miller's Sin City College Football: A Game to Die for and Other Lessons about the Right of Publicity and Video Games

Academic journal article Washington and Lee Law Review

Frank Miller's Sin City College Football: A Game to Die for and Other Lessons about the Right of Publicity and Video Games

Article excerpt

Table of Contents

I. Introduction.....................................................................380

II. Frank Miller's Sin City College Football: A Game to Die For.........................................................................382

III. Four Challenges...............................................................383

A. How Will Federal First Amendment Protection Be Balanced Against State Right of Publicity Laws?............................................383

B. How Will a Federal Standard Apply to the Variety of State Publicity Laws?...............................386

C. Will Courts Continue to Treat "Name" and "Likeness" Differently than "Name and Likeness?"........................................................................388

D. How Much Transformation is Enough Transformation to Warrant Independent Protection for a Second Work?..................................390

IV. Conclusion........................................................................396

I. Introduction

In his excellent Note, Garrett Rice proposes a simple one-sentence test as a solution for applying the right of publicity to video games.1 He outlines the history of the right of publicity and discusses the seminal cases, both those prior to and during the video game era.2 He examines the three most commonly used tests, the Rogers test, the predominant use test, and the transformative use test and appropriately rejects the first two outright.3 The Rogers test just was not designed nor intended to apply to something as complex as a video game, and the predominant factors test has been correctly described as "subjective at best, arbitrary at worst."4

The transformative use test, developed by the California Supreme Court in Comedy III Productions v. Gary Saderup, Inc.,5 (

Rice proposes a "readily identifiable" standard: "A video game violates an individual's right of publicity if a person familiar with the individual would look at a video game character and know immediately that the character is definitively based on the real individual."8 Application of the test compares favorably with existing precedent. Rice applies it to five of the more recent video game cases with good results, yielding the same results as those found by the courts.9

There remain, however, some larger issues that cast shadows on this still-developing area of law. I believe that there are four major challenges that still plague the balancing between and among the rights of publicity, the First Amendment, and copyright law.

There is a great deal of First Amendment protection for both news reporting about public events, like football games, and for publicly available information, like the statistics generated by a football game.10 How will this federal protection be balanced against state right of publicity laws?

State right of publicity laws vary greatly.* 11 Will a federal standard be able to apply to all the variations in these laws?

Most right of publicity laws protect one's "name and likeness," and courts have traditionally treated it as one interest. Will courts continue the trend towards considering "name" and "likeness" as separate interests?"12

Tests that attempt to balance interests involving the First Amendment and the right of publicity (or the First Amendment and copyright) generally look at how much transformation there is between the original work and the second work. Just how much transformation is enough transformation to warrant independent protection for the second item? …

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