Dangerous Beauty
Normally the law is a pretty dry and stuffy subject, but I love it when a case comes up that touches on popular culture. Currently before the Justices is a Petition of Certiorari that asks the Supreme Court to consider when the First Amendment protects a video game’s digital image of someone else’s likeness without that person’s consent.
Lenwood Hamilton is a former professional football player and wrestler. His likeness allegedly appears as a fictional character in the video game “Gears of War.” Hamilton sued the game company and other defendants for violating his right of publicity.
In response, the defendants claimed the protection of the First Amendment.
The District Court held that the First Amendment barred Hamilton's claims and granted summary judgment to the defendants. The Third Circuit Court of Appeals affirmed the decision below.
Lenwood Hamilton (left), also known as Hard Rock Hamilton, claimed that "Gears of War" character Augustus Cole (right) infringed his publicity rights
The U.S. Court of Appeals for the 3rd Circuit resolved the dispute using the “transformative use” test. Recognizing that Hamilton and the character have the same skin colors, facial features, hairstyles, builds and voices, the 3rd Circuit nevertheless noted differences in personality and profession (Hamilton has never served in the military or fought aliens) that rendered Hamilton’s likeness “so transformed that it has become primarily the defendant’s own expression.”
Among the arguments in his petition, Hamilton maintains that the 3rd Circuit’s expansive test could allow “shoot-em-up games involving the Dalai Lama or CGI pornographic films of famous actresses."
The case is Hamilton v. Speight.
On a side note, when reading the 3rd circuit's opinion below, I caught a citation to another case: Kirby v. Sega of America (2006) The plaintiff in this case was Kieran Kirby who was the lead singer of Deee-Lite (under the stage name Lady Miss Kier) in the 90's and she made a similar lawsuit over the character "Ulala" who was a campy 25th century news reporter who dances in a video game called Space Channel 5.
Back to the OP...my prediction will be a denial of cert by the Court.
Lenwood Hamilton is a former professional football player and wrestler. His likeness allegedly appears as a fictional character in the video game “Gears of War.” Hamilton sued the game company and other defendants for violating his right of publicity.
In response, the defendants claimed the protection of the First Amendment.
The District Court held that the First Amendment barred Hamilton's claims and granted summary judgment to the defendants. The Third Circuit Court of Appeals affirmed the decision below.
Lenwood Hamilton (left), also known as Hard Rock Hamilton, claimed that "Gears of War" character Augustus Cole (right) infringed his publicity rights
The U.S. Court of Appeals for the 3rd Circuit resolved the dispute using the “transformative use” test. Recognizing that Hamilton and the character have the same skin colors, facial features, hairstyles, builds and voices, the 3rd Circuit nevertheless noted differences in personality and profession (Hamilton has never served in the military or fought aliens) that rendered Hamilton’s likeness “so transformed that it has become primarily the defendant’s own expression.”
Among the arguments in his petition, Hamilton maintains that the 3rd Circuit’s expansive test could allow “shoot-em-up games involving the Dalai Lama or CGI pornographic films of famous actresses."
The case is Hamilton v. Speight.
On a side note, when reading the 3rd circuit's opinion below, I caught a citation to another case: Kirby v. Sega of America (2006) The plaintiff in this case was Kieran Kirby who was the lead singer of Deee-Lite (under the stage name Lady Miss Kier) in the 90's and she made a similar lawsuit over the character "Ulala" who was a campy 25th century news reporter who dances in a video game called Space Channel 5.
Back to the OP...my prediction will be a denial of cert by the Court.
