Partner Lee S. Brenner Featured in Daily Journal Discussing Publicity Rights and Video Game Companies
October 14, 2013

In the article, “Video Games Increasingly Vulnerable to Publicity Rights Lawsuits” published by the Daily Journal, partner Lee S. Brenner comments on how courts have handled the balance between protecting a person’s image and likeness against a party’s First Amendment rights in legal disputes involving video game companies. Video games, similar to other expressive works which portray real life characters and events, have largely enjoyed protection under the First Amendment. However, recent court decisions are finding some games to be too close to real life and intrude on people’s publicity rights.   

At the center of these disputes is video game maker Electronic Arts Inc., which faced litigation from former college athletes that claimed their likeness had been misappropriated in the popular video game franchise NCAA Football. Both the 9th and 3rd U.S. Circuit Courts of Appeals confirmed this year that the game is too similar to real life and the players were not sufficiently transformed for the company to claim First Amendment protection.

“We’ve got this ever-advancing technology, we have basic principles of freedom of speech and they don’t vary when we have a new or different medium of communication,” said Mr. Brenner.

In 2011, the Supreme Court upheld that video games should be granted the same First Amendment protections that books, plays and movies have, but have not considered it in the context of publicity laws.

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