On July 6, 2016, the American population was swept in a wave of nostalgia that redefined the gaming market. Across American cities, strangers came together to play Pokémon Go, the augmented reality game. The game quickly becoming the most downloaded app from the Apple App Store ever. Pokémon Go introduced players to augmented reality gaming. Partnering with Google Maps, Pokémon Go incorporated real world streets, parks, and landmarks into the virtual gaming world where players pursued, caught, and trained Pokémon. Pokémon Go forcefully reminded the world that video games are here to stay, breaking records to earn $500 million within three months of release.

Pokémon Go presents its own unique legal problems regarding player conduct, but the law in terms of game content is far from settled. In fact, game content may dramatically infringe upon real world rights. Consider two of the issues for video game content: trademarks and privacy.

Trademarks in Video Games

The Supreme Court held in Brown v. Entm’t Merchs. Ass’n that video games, like movies and books, are afforded First Amendment protection. However, representation of real world objects in the virtual gaming world, while understandably desirable to gaming developers looking to create a realistic experience, does run afoul of the intellectual property rights of others. In the important trademark case E.S.S. Entm’t 2000, Inc. v. Rock Star Videos, Inc., the Ninth Circuit held that the First Amendment provides a defense against trademark violation. In Rock Star, the game Grand Theft Auto: San Andreas portrayed a city modeled after Los Angeles and included a strip bar called the Pig Pen was modeled after the Play Pen, a real strip club operating in East Los Angeles. In the trademark suit, the court noted that “video games and strip clubs do not go together like a horse and carriage, or perish the though, love and marriage.” The Court noted that the unlikelihood of confusion between the game’s Pig Pen and the real world Play Pen meant that the game developer’s First Amendment right outweighed the trademark violation.

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However, recent cases have raised some concern about the sufficiency of First Amendment protections in the trademark context. In the highly public Electronic Arts, Inc. v. Textron Inc., EA infringed upon Textron’s trademark in representing Textron’s helicopters in the game Battlefield 3. Though EA and Textron traditionally contracted so that EA could represent Textron’s trademarks in its work, negotiations had fallen through. EA relied on Rock Star in their motion to dismiss. However, the Court found that “consumers could think Textron provided expertise and knowledge to the game in order to create its realistic simulation of the actual workings of the Bell-manufactured helicopters.”

These two cases represent a difficult balance for game developers to draw in terms of representing real world trademarked property. While game developers often draw upon the real world as inspiration, there is no guarantee that the First Amendment will provide sufficient protection for infringement of trademarks.

Privacy in Video Games

Privacy issues pose a similar problem for game developers. Whether intentional or unintentional, game characters may resemble real world celebrities and other individuals. This explicitly raises issues regarding the right of publicity. In Gravano v. Take-Two Interactive Software Inc., plaintiffs Karen Gravano and Lindsay Lohan claim that characters in the video game Grand Theft Auto V represented them and that Take-Two thus violated their right to privacy under New York Civil Rights Law § 51. Gravano claimed that a particular character “uses the same phrases she uses” and that “the character’s father mirrors Gravano’s own father.” Lohan argued similarly that a character incorporated her likeness. She claims Take-Two had “purposefully used Lohan’s bikini, shoulder-length blonde hair, jewelry, cell phone, and ‘signature peace sign’ pose.” The First Appellate Division dismissed the case, stating that “[Take-Two] did not use plaintiffs’ name, portrait, or picture.” The court reaffirmed that video games were not “advertising” or trade” within the meaning of the statute and were afforded some protection under the First Amendment as “fiction and satire.”

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Though the public seems reasonably pleased with the court’s decision in Gravano, this logic may be double-edged. Though Lohan lawsuit may be unpopular, there is a nagging concern that perhaps Take Two may have actually used Lohan as a model to their character. For any individual, this could raise a serious concern.

Take the following hypothetical example. Alex is a lawyer in New York City representing a party in a highly public case. Feeling under the weather, he sniffles through much of the jury trial and is difficult to understand at times. Alex ultimately loses his case. Newspapers and other media cover the case extensively. Some imply that Alex, due to personal reasons such as his sniffling, was ineffective. The next year, a game company develops a game where players meet a character named Andrew, an incompetent lawyer who often sniffs and has a serious cocaine addiction. Alex should rightfully be concerned for his privacy. This game could be an immortalization of his failure. In addition, it raises questions of defamation to Alex’s character. However, Alex may be barred from relief merely because the game does not use his “name, portrait, or picture.”

Privacy laws help ensure that game developers are adequately insulated from lawsuits that would otherwise threaten their creativity. It ensures that public figures like Lindsay Lohan cannot use their notoriety to silence creative storytellers. However, there is a legitimate concern for individuals in that game developers may portray their life or story in a way that truly does harm their reputation. The modern media can have distorting effects on truth and representation. Take for example, the story of the Chinese model whose career was ruined after she was portrayed in a commercial implying that she had plastic surgery. The public assumed that she did have plastic surgery, thus harming her reputation. Similarly, in approaching video game content, the law must find a way to adequately balance the interests of the public from defamation while also protecting the creative rights of game developers.

Dennis Mais a J.D. candidate, 2018, at NYU School of Law.