First Amendment vs. Publicity Rights

In today's culture well-known figures are depicted in video games and played by actors on shows like SNL. The First Amendment technically protects the ability to portray real-life people in fictional works, but the United States also gives individuals a legal “publicity right” to control how they are represented in the media, including video games. These conflicting rights pose an issue in some circumstances. Where does freedom of speech end and the enforcement of publicity begin? It is impossible for the line to be objective – it must be drawn on a case-to-case basis, similar to how Google has to decide which information requested to be removed actually should or shouldn't be removed. Deciding between the legal dogmas of the First Amendment and the publicity right depends on the damages inflicted to the person involved.

During the month of July, actress Lindsay Lohan began a legal battle with Rockstar Games, the makers in Grand Theft Auto V, because one of the characters had a similar likeness. Looking at two pictures side-by-side, there is some resemblance, but the developers stated that the persona and image was of a look-a-like model. In this case, Rockstar can seek defense against publicity rights by claiming “transformative use,” which means that the likeness was used to create a wholly new and original work. The issue with Lohan’s case is that the game never mentions her by name or alludes to her in any sense. However, if the judge is convinced that the character is unmistakably a depiction of the actor, the situation changes. Since the character is associated with content that turns a profit for Rockstar, freedom of speech is less of a safety net, since it only extends to limited artistic works, and not commercial products.

If Lohan wins this case, will this set a precedent for future works of satire? Lohan’s reputation has already been set. Her likeness in a popular video game will not damage or remedy it any further. The only case she can make is that she deserves a royalty for the merchandise with her doppelganger on it, if the judge is convinced Rockstar used Lohan’s image intentionally.

Another case where someone is suing a video game company is focused on Call of Duty: Black Ops II, by Activision. Set in the Cold War era, it is not surprising that important historical figures are involved and depicted. One of these characters is the former dictator of Panama Manuel Noriega, currently in prison for his crimes while in power. There is no attempt to disguise the fact that he is a part of the game’s story. This case is complicated because he is not a United States citizen. U.S. publicity rights have been extended to people in foreign nations in the past, but it is unlikely a judge will do so for a former dictator. Even if Noriega is granted U.S. publicity rights, Activision’s First Amendment rights will probably overrule them. Activision is not gaining anything from using Noriega’s character – it is solely for the purpose of maintaining the accuracy of the time period. Noriega’s reputation, like Lohan’s, has already been damaged. The reasons for his imprisonment will vastly overshadow any black specks the Call of Duty has put on his reputation, if any.

These cases are just two examples of the multitude of lawsuits filed against video game companies for using the images or likenesses of people who simply did not want the attention. Both Lohan and Noriega have lost nothing by being depicted in the games. The First Amendment should prevail in these two cases, unless the person involved has suffered damage to a positive public image from being featured in the video game.