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Skip Hamilton Loses Appeal Over Gears of War Character
A former wrestler and football player sued Microsoft, Epic Games, and others, over a Gears of War character that looked like him. The district court held that the First Amendment protected the game developers and the Third Circuit appeals court affirmed.
In the 1990s, Lenwood “Skip” Hamilton, a former college football player, created the now -defunct Soul City Wrestling, a “family-friendly” organization. He performed as “Hard Rock Hamilton” and hoped to spread a “message to kids about drug awareness, and the importance of getting an education.”
In 1998, Lester Speight joined Soul City Wrestling, performing as “Rasta the Voodoo Man.” On July 25, 1998, Soul City Wrestling held an event in Philadelphia featuring Hamilton as “Hard Rock” and Speight as “Rasta.” During the after-party for the event, Speight told Hamilton about plans to participate in a violent shoot ‘em up video game, but Hamilton wasn’t interested because he was trying to promote “family-friendly” content rather than violent games. That video game series would eventually become Gears of War.
A few years ago, Hamilton learned that Epic Games had created a character called August “Cole Train” Cole in Gears of War — a post-apocalyptic fantasy series that takes place on an Earth-like planet called Sera and involves human characters battling exotic reptilian humanoids known as the “Locust Horde.” The character had nothing to do with wrestling or football, and had no references to Hamilton, but nevertheless, when Skip saw the “Cole Train” character, he felt like he was “looking into a mirror.”
He sued Speight and the game developers, including Microsoft and Epic Games, for violation of his right of publicity.
THE DISTRICT COURT JUDGMENT
On September 26, 2019, the District Court in Pennsylvania applied the Transformative Use test (first developed by the California Supreme Court in Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal.4th 387 (2001)) to balance the game developers’ First Amendment rights against Hamilton’s right of publicity. The District Court, being in the Third Circuit, relied on Hart v. Elec. Arts, Inc., 717 F.3d 141 (3d Cir. 2013), which previously applied the test to EA’s NCAA Football game, which included real-world college football players.
In Hart, the Third Circuit distinguished two previous Transformative Use test cases:
Kirby v. Sega of America, Inc., 144 Cal.App.4th 47 (2006) — The First Amendment protected Sega’s “Ulala” character, a reported in the 25th Century sent to investigate an invasion of Earth by dance-loving aliens who shoot earthlings with ray guns, causing them to dance uncontrollably. The court found that even though there were many similarities between the “Ulala” character and real-world musician Keirin Kirby (whose catch-phrase was “ooh la la”), Sega’s use of the character was “transformative.”
No Doubt v. Activision Publ’g, Inc., 192 Cal. App. 4th 1018, 1022, 122 Cal. Rptr. 3d 397, 401 (2011) — The First Amendment did not protect Activision’s use of No Doubt band members’ likenesses for uses in Band Hero beyond what they had contractually agreed to (e.g., Gwen Stefani was unhappy that her in-game avatar could be modified to sing other bands’ songs and/or with a male voice).
The Hart court came up with a bright-line rule (over a blistering, well-reasoned dissent) that game developers can’t take real people and put them in a video game doing exactly what they did to get famous in real life, such as playing college football.
The District Court in the Hamilton case followed this bright line rule and saw this situation as more like the Kirby case, where to the extent the real person’s likeness was used, it was totally transformed by the setting of outer space, with aliens, and the fact that the game character didn’t do any of the things the real person (Hamilton) did in real life to achieve fame (football and wrestling). As a result, the District Court ruled that the game developers’ use was protected by the First Amendment.
The Third Circuit affirmed, concluding that “no reasonable jury could conclude that Hamilton…is the ‘sum and substance’ of the Augustus Cole character.” The Third Circuit did agree there were similarities, including: similar skin colors, facial features, hairstyles, builds and voices — as well as a “thrashball” skin which was a fictionalized sport in the game that sort of resembled American football and a “Superstar Cole” skin that resembled Hamilton’s signature wrestling costume. However, the Third Circuit found “other significant differences” which revealed that “Hamilton was, at most, one of the ‘raw materials from which Augustus Cole was synthesized.” The court concluded that “[i]f Hamilton was the inspiration for Cole, the likeness has been so transformed that it has become primarily the [game developers’] own expression,” meaning the First Amendment barred Hamilton’s claims.
Right of publicity law remains wonky. The points made by the dissenting judges in Hart and Keller — that there is now a “medium-specific metric” in First Amendment jurisprudence that treats video games differently than other artistic mediums — still haven’t been resolved. While this case is a win for the game developers, it doesn’t address those horrific First Amendment problems which still lurk in right of publicity jurisprudence. The idea that it’s never OK to put a real-world person into a video game doing what they did in real life to get famous simply doesn’t jibe with the First Amendment’s protection of expressive speech. Because this particular case involved a “space” fantasy character fighting aliens, everything was fine. I suppose no real change can be expected in the law until a game developer makes a game that features real-world people acting just like their real-world selves in a way that makes judges understand that games can be just as expressive as films, books, and television.