As modern technologies evolve, new areas for right of publicity and right to privacy litigation emerge. Video games featuring representations of actual people present interesting issues — and not just hypothetical ones. In the Northern District of California, a case is pending for the “blatant and unlawful use” of NCAA student athlete likenesses in video games. In a preliminary ruling, the court held the defendant liable for violating the players’ rights of publicity. See Keller v Electronic Arts, Inc. (ND Cal, Feb. 8, 2010, No. C 09-1967 CW) 2010 US Dist Lexis 10719.
A person’s right of publicity prevents others from appropriating the person’s name, image, and likeness for commercial gain. California case law considers a claim for violation of this right a subspecies of the genus of tort known as “violation of the right of privacy.” Violation of the right of publicity usually arises in the context of the right to control the commercial exploitation of one’s likeness and is generally asserted by a celebrity who welcomes publicity, as long as he or she is paid for it.
Although the issue pending in the district court has yet to arise here, California law seems to be at the forefront of this brave new area of the law; a New York Law Journal article notes that the law in California “has evolved parallel to the increasing scope and complexity of privacy and publicity issues naturally flowing from the digital media revolution.”
On the right of publicity in the ever-changing legal environment, see California Business Litigation, chap 10 (Cal CEB 2002). On invasion of privacy claims in California, check out Privacy Compliance and Litigation in California §§2.6-2.15 (Cal CEB 2008).
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