Football Hall of Famer Jim Brown wants to stop a video game company from using an avatar that looks like him, plays his former position and has similar athletic skills. His is one of three cases pending before two circuit courts that raise the question of whether video games can use likenesses of real people without their permission. The lawsuits, brought by former college and professional football players against video game maker Electronic Arts Inc., spotlight a legal issue that has divided courts for decades: To what extent can public figures restrict others from depicting them in expressive works?
The three cases focus on whether the First Amendment or the right of publicity controls the use of images of real people in video games. The right of publicity is governed by state law almost every state recognizes it by statute or through common law. For example, California’s statute recognizes a publicity right in a person’s “name, voice, signature, photograph, or likeness.”
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