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Petitioner, V No. ____ IN THE Supreme Court of the United States _________ LENWOOD HAMILTON, A/K/A HARD ROCK OR SKIP HAMILTON, Petitioner, v. LESTER SPEIGHT, A/K/A RASTA THE URBAN WARRIOR, A/K/A AUGUSTUS “COLE TRAIN” COLE; EPIC GAMES, INC.; MICROSOFT, INC., A/K/A MICROSOFT CORP.; MICROSOFT STUDIOS; THE COALITION, Respondents. _________ On Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit _________ PETITION FOR A WRIT OF CERTIORARI _________ TILLMAN J. BRECKENRIDGE Counsel of Record BRECKENRIDGE PLLC 1325 G Street NW Suite 500 Washington, DC 20005 Telephone: 202-567-7733 tjb@breckenridgepllc.com Counsel for Petitioner QUESTIONS PRESENTED Epic Games used Lenwood “Hard Rock” Hamilton’s face and voice in its billion-dollar Gears of War video game franchise without his permission. The Third Circuit used a version of the Supreme Court of California’s “transformative use test” to determine that Epic Games had a First Amendment right to use Hamilton’s image and voice without his permission. The questions presented are: 1) whether the First Amendment right to free speech protects using a person’s actual likeness without permission when weighed against that person’s property, privacy, and dignity rights against unauthorized use of his likeness, and 2) whether the First Amendment right to free speech protects a video game maker’s unauthorized use of a person’s face and voice in a game? ii PARTIES TO THE PROCEEDINGS AND RELATED PROCEEDINGS The Petitioner in this case is Lenwood Hamilton, an individual. Petitioner was the plaintiff and appellant below. The Respondents are Lester Speight, Epic Games, Inc., Microsoft Inc., Microsoft Studios, and The Coalition, which were defendants and appellees below. The related proceedings are: 1) Hamilton v. Speight, 413 F. Supp. 3d 423 (E.D. Pa. 2019) – Judgment entered September 26, 2019; and 2) Hamilton v. Speight, No. 19-3495, 827 Fed. Appx. 238, 2020 WL 5569454, (3d Cir. 2020) – Judgment entered September 17, 2020. iii TABLE OF CONTENTS Page QUESTIONS PRESENTED ....................................... i PARTIES TO THE PROCEEDINGS AND RELATED PROCEEDINGS ........................... ii TABLE OF AUTHORITIES ....................................... v INTRODUCTION ....................................................... 1 PETITION FOR A WRIT OF CERTIORARI ............ 3 OPINIONS BELOW ................................................... 3 JURISDICTION ......................................................... 3 STATUTORY PROVISIONS INVOLVED ................ 3 STATEMENT OF THE CASE ................................... 3 A. The defendants incorporate Lenwood Hamilton’s image and voice into a character, Augustus Cole, for their popular Gears of War video game. .................. 3 B. The defendants give Cole a personality abhorrent to Hamilton..................................... 5 C. Hamilton sues the defendants for misappropriation of his likeness, and the district court ultimately grants summary judgment in the defendants’ favor based on the transformative use test. ................................................................... 6 D. The Third Circuit affirms, applying a version of the transformative use test iv that allows nearly unlimited use of a person’s actual likeness without permission. ....................................................... 8 REASONS FOR GRANTING THE WRIT ................. 9 I. THE CIRCUITS AND STATE COURTS OF LAST RESORT ARE DIVIDED ON WHEN THE FIRST AMENDMENT PROTECTS USING A PERSON’S ACTUAL LIKENESS. ......................................... 9 II. THIS CASE PRESENTS A QUESTION OF EXCEPTIONAL IMPORTANCE. ............... 19 CONCLUSION ......................................................... 24 APPENDIX APPENDIX A: Opinion of the United States Court of Appeals for the Third Circuit (September 17, 2020) ........................ 1a APPENDIX B: Opinion of the United States District Court for the Eastern District of Pennsylvania (September 26, 2019) ......................................................... 7a APPENDIX C: judgment of the united states court of appeals for the third circuit (September 17, 2020) ....................... 31a APPENDIX D: statutory provision involved ........................................................ 33a TABLE OF AUTHORITIES Page(s) Cases Burns v. Pa. Dept. of Correction, 544 F.3d 279 (3d Cir. 2008) ................................... 10 C.B.C. Distrib. & Mktg. v. Major League Baseball Advanced, L.P., 505 F.3d 818 (8th Cir. 2007)............................ 15, 18 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) ................................................ 17 Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959 (10th Cir. 1996).................................. 13 Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal.4th 387 (2001) ................................ 12, 13, 19 Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003) .............................. 14, 15 Eldred v. Ashcroft, 537 U.S. 186 (2003) ................................................ 19 Hart v. Elec. Arts, Inc., 717 F.3d 141 (3d Cir. 2013) ........................... passim Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994).................................... 12 Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2003).................................. 12 Rakas v. Illinois, 439 U.S. 128 (1978) ................................................ 10 vi TABLE OF AUTHORITIES (CONTINUED) Rogers v. Grimaldi, 875 F.3d 994 (2d Cir. 1989) ............................. 11, 12 Zacchini v. Scripps Howard Broad. Co., 433 U.S. 562 (1977) .......................................... 10, 11 Other Authorities Amanda Tate, Note: Miley Cyrus and the Attack of the Drones, 17 Tex. Rev. Ent. & Sports L. 73 (Fall, 2015) ........................................ 21 Caitlyn Slater, Comment: The “Sad Michigan Fan”: What Accident-ally Becoming an Internet Celebrity Means in Terms of Right of Publicity and Copyright, 2017 Mich. St. L. Rev. 865 (2017) ...................................................................... 22 Eric E. Johnson, Disentangling the Right of Publicity, 111 Nw. U.L. Rev. 891 (2017) ......... 10, 11 Joseph Bernstein, How HBO Unwittingly Helped Create Insanely Hardcore “Game of Thrones” Porn, Buzzfeed News, Feb. 11, 2015 .................................................................. 23 Matthew R. Grothouse, Collateral Damage: Why the Transformative Use Test Confounds Publicity Rights Law, 18 Va. J.L. & Tech. 474 (Summer 2014) ............................ 9 Maya Shwayder, Why Deepfakes Will Soon Be as Commonplace as Photoshop, Digitaltrends, Dec. 13, 2019 .................................. 22 vii TABLE OF AUTHORITIES (CONTINUED) Naled Ushe, Celebrities Who Don’t Talk Politics: ‘Nobody Cares’, Fox News, Nov. 1, 2020 .................................................................... 21 Patrick Cronin, Historical Origins of the Conflict Between Copyright and the First Amendment, 35 Colum. J.L. & Arts 221 (Winter 2012) ......................................................... 23 Restatement (Second) of Torts, § 652 C ..................... 9 Robert C. Post & Jennifer E. Rothman, The First Amendment and the Right(s) of Publicity, 130 Yale L.J. 86 (October, 2020) ........................................................... 17, 18, 19 Samantha Cole, ‘They Can’t Stop Us:’ People are Having Sex with 3D Avatars of Their Exes and Celebrities, Vice, Nov. 19, 2019 .................................................................. 23 The Right of Publicity and Autonomous Self-Definition, 67 U. Pitt. L. Rev. 225 (Fall 2005) .................................................... 9, 18, 21 Tim Simonite, Forget Politics. For Now, Deepfakes are for Bullies, Wired, Sept. 4, 2019 ........................................................................ 23 INTRODUCTION Quoting a brief of amici curiae, the Third Circuit expressed serious concern in Hart v. Electronic Arts, Inc. that some variations of the “transformative use test” could lead a court to wrongly find that there is a First Amendment right to place the image of the Dalai Lama or the Pope in a violent shoot-em-up game against their wishes. 717 F.3d 141, 167 (3d Cir. 2013). That fear is now realized. Courts have wrestled with the First Amendment implications of using someone’s likeness for decades. And without this Court’s guidance, they have developed myriad tests for determining when a person has a right to exclude others. The most prominent test is the Supreme Court of California’s “transformative use test,” which the Third Circuit adopted and modified. But other tests have arisen. The Supreme Court of Missouri adopted the “predominant use test.” And the “relatedness test” has been used by Second and Fifth Circuits. The Sixth Circuit has used both the “relatedness test” and the “transformative use test.” Other circuits and state courts of last resort have used other methods of resolving these issues. Here, the Third Circuit held, under the trans- formative use test, that the First Amendment provides companies a constitutional right to take a person’s exact likeness and use it in videogames or art or film, so long as the likeness is used in an uncharacteristic way—in this case, changing the person’s outfit and having him battle space aliens in a violent and gory video game. Indeed, it ruled that Hamilton’s disgust with how Epic Games used his likeness weighed in favor of protection. 2 Under the Third Circuit’s standard, a pornographer can use the likeness of a star actress who has never done a nude
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