99 Pages Posted: 30 May 2012 Last revised: 1 Feb 2013
Date Written: May 30, 2012
Are games more like coffee mugs, posters, and t-shirts, or are they more like books, magazines, and films? For purposes of the right of publicity, the answer matters. The question goes to the heart of whether games should be treated as merchandise or expression. The three classic judicial decisions on this topic — decided in 1967, 1970, and 1973 — held that the various defendants needed permission to use the plaintiffs’ names in their board games. In so doing, these decisions judicially confirmed the status of games as merchandise, rather than something equivalent to more traditional media of expression. As merchandise, games are not like books; they are instead like celebrity embossed coffee mugs. According to this view, games are essentially, to borrow a British term, “mere image carriers.” These three decisions confirmed the “settled order of things”: a license is required to use someone’s name or likeness (i.e., identity) in a game.
We argue that the three classic cases and the rule they produced are anachronisms. The licensing tradition created — or at least reinforced — by these decisions should carry no weight. These cases were questionable when decided. They are even more so now. Games as a medium have evolved significantly over the past four decades, calling into question the longstanding treatment of games for purposes of the right of publicity. Games in general are ready to be considered alongside other expressive works. While it is possible for a particular game to be a mere image or identity carrier of a person’s identity, games are often much more. For purposes of the right of publicity, games are not like coffee mugs.
Keywords: right of publicity, games, video games, First Amendment
Suggested Citation: Suggested Citation
Ford, William K. and Liebler, Raizel, Games are Not Coffee Mugs: Games and the Right of Publicity (May 30, 2012). Santa Clara Computer and High Technology Law Journal, Vol. 29, No. 1, 2012. Available at SSRN: https://ssrn.com/abstract=2070917