Comment on “Groove is in the Hart ”: A Workable Solution for Applying the Right of Publicity to Video Games

The right of publicity is increasingly important to the multibillion-dollar video game industry.1 In particular, many sports-related video games, including Electronics Arts' popular NCAA® Football and NCAA® Basketball franchises, incorporate the likenesses and personas of professional and amateur athletes as an integral part of gameplay.Not surprisingly, some athletes depicted in these games have demanded compensation for the commercial exploitation of their likenesses and personas.2 However, their claims are in tension with the First Amendment,3 which safeguards freedom of speech and expression, including expressions that implicate the right of publicity.4 Federal and state courts have split regarding how to resolve this tension, adopting a variety of judicially created tests that legal scholars have criticized as creating "massive confusion"5 and uncertainty about the scope of First Amendment protection.6In his Note "Groove is in the Hart": A Workable Solution for Applying the Right of Publicity to Video Games1 Garrett Rice seeks to address this important issue by proposing a new approach, which he labels the "readily identifiable" standard.8 I believe that Mr. Rice's well-researched and clearly written Note makes a valuable contribution in the ongoing debate on how to balance appropriately these competing interests in the video game context. I am grateful to have the opportunity to participate in a scholarly dialogue regarding his Note.The recognition of a property right in one's name, likeness, and persona is a relatively recent development in American law.9 The right of publicity grew out of the common law right to privacy,10 but it was only first recognized as an independent cause of action in 1953.11 In Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., the parties were rival chewing gum sellers who sought to obtain rights from professional baseball players to use their pictures on baseball cards.12 The plaintiff, Haelan, negotiated exclusive licenses with a number of baseball players, but the defendant, Topps, included pictures of some of the same players in its own baseball cards.13 The Second Circuit held that New York's privacy law did not cover such uses.14 However, the court recognized "that, in additional to and independent of that right of privacy . . . , a man has a right in the publicity value of his photograph the exclusive privilege of publishing his picture," which it termed "a right of publicity."15 Today, a majority of states recognize the right of publicity as a separate cause of action, either under common law or by statute.16The essence of a property right is the ability to exclude others.17 However, the property right embodied in the right of publicity is circumscribed by the First Amendment, which protects "the free flow of ideas and opinions on matters of public interest and concern."18 First Amendment protection is particularly robust for expression about celebrities and other public figures.19 And "[bjecause celebrities take on public meaning, the appropriation of their likenesses may have important uses in uninhibited debate on public issues, particularly debates about culture and value."20 Thus, an unfettered property interest in a person's name, image, and likeness would limit and impoverish the scope of expression about public figures. At its extreme, as Professor Michael Madow has explained, the right of publicity could facilitate private censorship of popular culture.21Mr. Rice's Note addresses a contemporary variation of the issue encountered in Haelan Laboratories-whether the depiction of highly skilled athletes without their permission violates the right of publicity. Of course, the relevant medium is different; at issue here is a digital, interactive version of the athletes' likeness in a video game rather than an "analog" still photograph on a baseball card. But the bottom line question-what limits does the First Amendment impose on the rights of individuals to control their image and likeness in a commercial context-remains the same. …