William Ford and Raizel Liebler recently wrote a great article about how games have historically been of treated as a second-class medium when it comes to the right of publicity. On that topic, I’ve got a short essay up over at Gamasutra about the Hart v. EA case, which is currently pending in the Third Circuit. If you have not heard about the case, more information can be found here at Harvard’s Berkman Center, with some excellent commentary by Andrew Sellars on the issues raised.
For me, the fundamental question is this — if you create a video game and you want to include in that setting an indentifiable individual, do you need to pay a licensing fee to that person or the heir of that person? And the basic answer for me is this: if games are like books (and not a second class medium) there should be a wide degree of freedom to make references to celebrities without a risk of infringing publicity rights.
In my opinion, the Hart district court (at least in broad strokes) got the case right. Now that we have EMA v. Brown on the book, federal courts should not be shy about protecting the creative freedoms of game designers. But given the shifting cultural intuitions about “owning” personal identity and the growth of licensing culture (which Jim Gibson has described), I am not entirely confident that the zeitgeist is trending positive. We’ll have to wait to see if the Third Circuit in the Hart case will get this right.