IP Law Daily First Amendment bars former pro wrestler’s misappropriation claims over videogame character
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Friday, September 18, 2020

First Amendment bars former pro wrestler’s misappropriation claims over videogame character

By Thomas Long, J.D.

Even if the former wrestler inspired the videogame character, his likeness had been so transformed that it had become primarily the defendants’ own expression.

The First Amendment barred claims by former professional athlete, entertainer, and motivational speaker Lenwood Hamilton that the creators of the popular "Gears of War" videogame series violated his publicity rights under Pennsylvania law by using his likeness in the games, the U.S. Court of Appeals in Philadelphia has held. Hamilton’s likeness had been sufficiently transformed by the defendants that it was not the "sum and substance" of the game character but merely a "raw material" that had gone into its creation. Accordingly, the defendants’ First Amendment rights prevailed over Hamilton’s right to protect his identity from unauthorized depiction or imitation. The court affirmed a grant of summary judgment in favor of the defendants (Hamilton v. Speight, September 17, 2020, Matey, P.).

Lenwood Hamilton, a former professional wrestler and football player, created and performed as the character "Hard Rock Hamilton" with Soul City Wrestling, a now-defunct professional wrestling organization that Hamilton founded. Hamilton played one game in the National Football League during the strike in 1987. Soul City Wrestling was a "family-friendly" organization, through which Hamilton said he hoped to spread a "message to kids about drug awareness, and the importance of getting an education." Hamilton’s work attracted positive attention from Philadelphia media and elected officials.

Hamilton asserted that parties involved in the creation, publication, and distribution of the "Games of War" videogame series—Microsoft, Inc., Microsoft Studios, The Coalition, Epic Games, Inc., and Lester Speight—included a character that misappropriated his likeness. In the game series, members of the Delta Squad—including a character named Augustus "Cole Train" Cole—fight against "a race of exotic reptilian humanoids." According to Hamilton, "Looking at the Augustus Cole character [wa]s like looking in a mirror." Hamilton’s former wrestling partner, Speight, provided the voice for the Cole character. In the game, the Cole character is a large, muscular African American male who is a former professional athlete who played the game thrashball, a fictionalized sport that loosely imitates American football.

Hamilton brought Pennsylvania state-law clams for unauthorized use of name or likeness under 42 Pa. Cons. Stat. § 8316; unjust enrichment; misappropriation of publicity; and invasion of privacy by misappropriation of identity. The defendants asserted a First Amendment defense and filed a motion for summary judgment. The district court granted the defendants’ motion for summary judgment, and Hamilton appealed.

The appellate court noted that while the right of publicity protects individuals from the misappropriation of their identities, the First Amendment protects the content of videogames, which is a form of speech. To strike a balance between these interests, courts apply a "transformative use test," which asks whether the product containing the plaintiff’s likeness is so transformed that it has become primarily the defendant’s own expression. "If it has, the defendant’s First Amendment rights prevail," the Third Circuit said. In conducting this analysis, courts look to whether the plaintiff’s likeness was one of the "raw materials" used in the creation of the defendant’s work, or whether the depiction or imitation of the plaintiff’s likeness was the "sum and substance" of the work.

In the appellate court’s view, no reasonable jury could conclude that Hamilton—either in the role of himself or his Hard Rock character—was the "sum and substance" of the Augustus Cole character. While there were similarities between Hamilton’s and Cole’s skin colors, facial features, hairstyles, builds, and voices, other significant differences revealed that Hamilton was, at most, one of the raw materials from which Augustus Cole was synthesized. For one thing, Cole battled against fantastic creatures on an imaginary planet, which Hamilton of course did not. The Cole character had served in the military; Hamilton didn’t. Moreover, Hamilton admitted that Cole’s persona was "alien" to him, and that Cole’s "boisterous" and "ignorant" personality and proclivity toward shooting people and cursing were "not me" and "totally against what I believe in."

"If Hamilton was the inspiration for Cole, the likeness has been ‘so transformed that it has become primarily the defendant’s own expression,’" the Third Circuit concluded. "The First Amendment therefore bars Hamilton’s claims, and we will affirm the District Court’s grant of summary judgment."

This case is No. 19-3495.

Attorneys: Carolynn Beck (Pierce Bainbridge P.C.) for Lenwood Hamilton, a\k\a Hard Rock, a\k\a Skip Hamilton. Ambika K. Doran (Davis Wright Tremaine LLP) for Lester Speight, a\k\a Rasta the Urban Warrior, a\k\a Augustus Cole, Cole Train, Epic Games Inc., and Microsoft, Inc. a\k\a Microsoft Corp.

Companies: Epic Games Inc.; Microsoft, Inc. a\k\a Microsoft Corp.

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