The First Amendement and New Media: Video Games as Protected Speech and the Implications for the Right of Publicity

IntroductionFilms, music, and television are capable of delivering immersive, reality-escaping entertainment, and society has been using these media to deliver such experiences for decades.1 These forms of media convey themes, ideas, and information.2 In a word, they are capable of expression, and, as such, they are protected by the First Amendment.3In addition to art galleries, theatres, and music halls, highly immersive, expressive experiences occur thousands of times a year in the comfort of living rooms through another medium: video games. For more than three decades, video games have been part of the entertainment landscape, and what began as a niche community has grown into a multi-billion dollar industry.4 Today, sixty-seven percent of American households play video games.5 In fact, only a handful of entertainment releases have ever eclipsed $1 billion in gross sales, and sitting alongside James Cameron's Avatar and Titanic on that list are three video games: Guitar Hero III; Call of Duty: Modern Warfare 2 ; and Call of Duty: Black Ops.6 In addition to the economic growth of the industry, video games are gaining recognition for their artistic qualities by The Recording Academy7 and the Smithsonian Institute.8 It was not until 2001, however, in American Amusement Machine Ass'n v. Kendrick, that the U.S. Court of Appeals for the Seventh Circuit held that some video games qualify as constitutionally protected speech.9Before Kendrick, courts grouped video games together with nonexpressive activities like pinball machines and chess;10 similar to these activities, the courts understood video games, as a medium, to be incapable of conveying ideas or information to the user and therefore incapable of expression.11 Hence, video games were characterized as leisure activities not protected by the First Amendment.12The recent conception of some video games as constitutionally protected forms of expression significantly impacts public policy, municipal ordinances regulating video games, and the availability of different tort actions.13 In particular, this development meaningfully affects a person's right of publicity because that right is often unavailable when the media in question is protected by the First Amendment.14The right of publicity is a person's right to control his or her own name, likeness, or identity and to prevent others from using the same for commercial use without consent.15 The right of publicity was first understood as an aspect of one's right of privacy,16 but it was later recognized as a distinct cause of action.17 Eventually, in 1977, in Zacchini v. Scripps-Howard Broadcasting Co., the U.S. Supreme Court formally recognized the existence of a right of publicity.18 The Court acknowledged how that right was seemingly at odds with protections of free speech and therefore mandated that courts conduct a balancing test to decide which right should prevail in a particular case; the Court, however, did not specify what the balancing test should look like.19 Left with a clear indication of a balancing test but no guidance as to what it consists of, lower courts have devised several variations over time.20The right of publicity tort is of particular interest in the context of video games because games commonly use the likenesses of actors or athletes as characters, and this occasionally has been done without the individual's permission.21 At least one recent U.S. district court decision, however, held that, despite the use of such a likeness, video games' status as protected speech prevents a successful right of publicity claim.22This Note explores the history of video games as a protected form of expression, attempts to explain why certain games qualify for protection while others do not, and evaluates the possible implications an overly broad categorization of games could have on an individual's right of publicity.23 Part I surveys the advancements in video games over the past thirty years, demonstrating in particular the ways in which the games have become more expressive. …