IP Law Daily First Amendment protects fictionalized character featured in ‘Gears of War’ video game
Friday, September 27, 2019

First Amendment protects fictionalized character featured in ‘Gears of War’ video game

By Brian Craig, J.D.

The First Amendment freedom of expression protecting video game creators outweighs the right of publicity asserted by a former professional wrestler.

The federal district court in Philadelphia has ended a right of publicity case brought by a former professional wrestler against creators of the popular Gears of War video game series. In granting summary judgment to the defendants, the court explained that the right of free expression under the First Amendment outweighs the right of publicity because the character used in the video game is a transformative use of the professional wrestling character (Hamilton v. Speight, September 26, 2019, Brody, A.).

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. Hamilton played one game in the National Football League during the strike in 1987. The former professional wrestler brought suit against defendants Microsoft, Inc., Microsoft Studios, The Coalition, Epic Games, Inc., and Lester Speight, contenting that the defendant video game makers and sellers misappropriated the Hard Rock Hamilton character when they created Augustus Cole, also referred to in-game as Cole Train, for the popular Gears of War video game series. Hamilton’s former wrestling mate 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. At no point in any of the Gears of War games is the Cole character identified as a wrestler, former wrestler, or aspiring wrestler. Hamilton brought Pennsylvania state clams for: (1) statutory unauthorized use of name or likeness; (2) misappropriation of publicity; (3) invasion of privacy; and (4) and unjust enrichment. The defendant video game makers and sellers asserted a First Amendment defense and filed a motion for summary judgment.

Transformative use test. In its analysis, the court applied the transformative use test. In cases where a plaintiff asserts a right to publicity, the First Amendment may serve as a defense. Video games like Gears of War are expressive speech protected by the First Amendment. In the transformation use test utilized by the Third Circuit, courts must balance the interests underlying the right of free expression against the interest in protecting the right of publicity.

Likeness and biographical information. In weighing the right of free expression with the right of publicity, the court examined the Cole character’s likeness and biographical information. Although the Cole character in the video game does bear a closer resemblance to Hard Rock Hamilton, the character’s physical likeness is sufficiently transformative to satisfy the transformative use standard. In addition, the Cole character has a different name than the Hard Rock Hamilton character. The Cole character wears sunglasses and a heavily-worn undershirt with a bracelet and band of fabric around his forearm that differs from Hard Rock Hamilton, who wears a tie, collared shirt, formal vest, no sunglasses, and a chain. There is no reference in the games to the Hard Rock Hamilton name or any other biographical information about Hard Rock Hamilton. The court also referred to side-by-side images in the appendix comparing the Cole character in the video with the Hard Rock Hamilton wrestler noting the differences in likeness.

Character’s context. Next the court reviewed the character’s context in the video game series. The court concluded that the Cole character appears in the profoundly transformative context of the Gears of War games. The Cole character appears and performs in Gears of War in an extraordinarily fanciful situation. Players use the Cole character to battle formerly-subterranean reptilian humanoids on a fictional planet as part of a broader military engagement stemming from a fictional energy source.

The court distinguished other cases involving digital avatars in video games, including a video game with an avatar of a Rutgers football star quarterback during simulated Rutgers football games and digital avatars of the rock band No Doubt controlled by players performing rock music as the rock band No Doubt, with the only difference being the fictionalized setting. In the present case, the court found that the differences between professional wrestling on Earth as Hard Rock Hamilton and battling formerly-subterranean reptilian humanoids as the Cole character is a profoundly transformative change in relevant context. Even taking Hamilton’s characterizations of the likeness between the Cole character and Hard Rock Hamilton in the light most favorable to Hamilton, Gears of War is protected by the First Amendment under the transformative use standard. According, the court granted summary judgment in favor of the creators and sellers of the video game.

This case is No. 2:17-cv-00169-AB.

Attorneys: Claiborne R. Hane (Pierce Bainbridge Beck Price & Hecht LLP) for Lenwood Hamilton a/k/a Hard Rock or Skip Hamilton. Alison Brooke Schary (Davis Wright Tremaine LLP) for Lester Speight a/k/a Rasta The Urban Warrior Augustus "Cole Train" Cole.

Companies: Microsoft, Inc.; Microsoft Studios; The Coalition; Epic Games, Inc.

MainStory: TopStory PublicityRights TechnologyInternet PennsylvaniaNews

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