Professional Athletes & Video Games: An Analysis of the Transformative Use Test

By Tyler S. Woods, J.D. Candidate, 2021.

The Transformative Use Test

In Brown v. Entm’t Merchants Ass’n, the Supreme Court confirmed that video games––like books, plays, and movies––are works of art that enjoy First Amendment protection. But this protection is not without limit. Although video games enjoy the freedom of expression, this expression cannot unjustly infringe upon an individual’s right of publicity.

In Comedy III Prods., Inc. v. Gary Saderup, Inc., the California Supreme Court annunciated the transformative use test as an affirmative defense to a right of publicity claim. The test inquires “whether a product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.” In other words, to qualify for legal protection, “an artist depicting a celebrity must contribute something more than a merely trivial variation, but create something recognizably his own.”

The Transformative Use Test Applied

Video game developers have faced several right of publicity claims by former athletes and have asserted the transformative use test as an affirmative defense. Provided are two such cases: the first case being the most well-known, the second case being the most recent.

In Keller v. Elecs. Arts, Inc., Samuel Keller, the former starting quarterback for Arizona State University, sued Electronic Arts (“EA”) for using his image and likeness in EA’s video game series, NCAA Football, without consent. The college football video game featured virtual players that physically resembled real college football players, listed the same jersey numbers as real college football players, and even included player biographies that displayed the same hometowns as real college football players. EA asserted transformative use as a defense to the right of publicity claim because the video game was an artistic expression that neither listed real player names nor depicted real college football exhibitions. However, the court held EA’s use was not sufficiently transformative, and thus Keller prevailed on his right of publicity claim. The court reasoned the use was not transformative because the virtual player and Keller shared many characteristics, including the same height, weight, jersey number, and hometown. Furthermore, the court reasoned the virtual player depicted Keller in the same form: they were both starting quarterbacks for the same football team.

In Hamilton v. Speight, a former professional football player and wrestler, Lenwood Hamilton, sued several video game developers for using his image and likeness in creating the virtual character Augustus Cole for the Gears of War video game series. Gears of War is a third-person shooter tracking a fictional military squad at war on a foreign planet against a race of exotic reptilian humanoids. The Cole video game character is a member of the fictional military squad, and Cole’s physical characteristics and voice are similar to Hamilton’s. In Gears of War 3, the player can change the Cole character’s outfit to either resemble Hamilton’s professional wrestling costume or a football player. Nonetheless, the court held that the transformative use test was satisfied, and thus Hamilton’s right of publicity claim was dismissed. The court first reasoned the use was transformative because Cole’s name, background, and violent persona are distinct from Hamilton’s. Second, the court reasoned the use was transformative because the context in which the Cole character appeared was dissimilar from Hamilton’s; for, unlike Hamilton who wrestled and played football, Cole engaged in “fantastical violence against cartoonish reptilian humanoids on a fictional planet in a fictional war.”

Practical Considerations Moving Forward

Hamilton affirms the transformative use test is the most appropriate test a video game developer should apply in defending against a right of publicity case. While there are alternatives to the transformative use test, such as the predominate use test and the Roger’s test, the transformative use test is likely the most objective and nuanced test observed by courts today. As applied to athletes and video games, the more a video game removes the athlete from the setting they professionally competed in, the more likely the video game developer will succeed in defending against a right of publicity claim. Thus, video game developers are not barred from utilizing professional athletes in their games. Nonetheless, developers should proceed with caution, and place the athlete within a unique setting distinct from the athlete’s primary sport.


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