Video Game Developers Have First Amendment Right to Base Characters in Part on Real People
From yesterday’s decision in Hamilton v. Speight (3d Cir.) (nonprecedential), written by Judge Paul Matey and joined by Judges Michael Chagares and Thomas Hardiman:
Lenwood Hamilton is a former professional athlete, entertainer, and motivational speaker…. Gears of War is a video game series in which members of the Delta Squad—
including Augustus “Cole Train” Cole—battle “a race of exotic reptilian humanoids”
known as the Locust Horde on the planet Sera. A few years ago, Hamilton saw the game for the first time. “Looking at the Augustus Cole character,” he felt, “[wa]s like looking in a mirror.” So he sued[,] … alleg[ing] that defendants used his likeness in violation of his right of publicity….
Here, no reasonable jury could conclude that Hamilton—whether Lenwood or Hard Rock—is the “sum and substance” of the Augustus Cole character. There are no doubt similarities. Hamilton and Cole have similar skin colors, facial features, hairstyles, builds, and voices. Hamilton played football for the Philadelphia Eagles; Cole once played “thrashball”—a “fictionalized sport that loosely imitates American football”—for a team with that same name. And Gears of War players can dress Cole in a “Superstar Cole” outfit that resembles Hard Rock Hamilton’s
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