Far from the rudimentary world of Pong and Space Invaders or the now quaint world of 1990s home game consoles, the latest crop of video games promises users authentic virtual adventures — forays into modern warfare, fanciful crime sprees, dragon slaying quests, the fierce drama of football, or the ability to play guitar in a popular rock band. Often, the latest generation of games displays avatars based upon real people, places or sporting teams, with or without a prior licensing arrangement. Not surprisingly, the amazing realism of video games has precipitated right of publicity claims and allegations of the misappropriation of a person’s likeness without authorization. In response, video game makers have countered that even if their games impinge upon the publicity rights of celebrities, their creative works are protected by the First Amendment.
This article will discuss the tort of right of publicity, First Amendment considerations that balance the right of publicity with the right of free expression, and recent litigation brought by celebrities, athletes, and musicians against video game makers over publicity rights.
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