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Kevin Chin

Abstract

Videogame technology has reached the point where characters can accurately mimic real-life individuals’ faces, features, and expressions. This has prompted new issues in the conflict between the right of publicity and freedom of expression. While the common-law right of publicity prevents the use of one’s identity or image without consent, the First Amendment limits this doctrine’s reach. Courts agree that the right of publicity must be balanced with freedom of expression, but differ on how to do so.

A few recent cases, however, indicate that the issue may soon be resolved. The Third and Ninth Circuit Courts, as well as the State of California, have adopted the “transformative use test.” Under this test, unauthorized use of an identity is permissible if the use adds significant creative elements and sufficiently transforms the likeness or identity into original expression. Courts have thus far only applied this test to football videogames using the likenesses of athletes, and none has found the use of these athletes’ likenesses adequately transformative.

The transformative use test, although useful in some instances, is incomplete. The Third and Ninth Circuits have allowed football players to protect their likenesses in the football context because football players are primarily known and recognized for one thing—playing football. Actors, on the other hand, may be famous for playing a wide variety of roles. Although some actors are associated with certain characters, many actors assume various roles stretching across diverse genres. This makes it more difficult to determine which actions and environments are popularly associated with an actor. Videogames exacerbate this difficulty because videogames can put characters in any environment, performing any action imaginable.

Because videogame characters can now accurately resemble famous actors, a new question has arisen: how to apply the transformative use test to videogames that employ celebrity likenesses without consent. This Comment explains how this new situation highlights a major flaw in the transformative use test.

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