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Journal of Broadcasting & Electronic Media ISSN: 0883-8151 (Print) 1550-6878 (Online) Journal homepage: http://www.tandfonline.com/loi/hbem20 How Real is Too Real for the Law? Realism versus Right of Publicity in Video Game Design Jamie M. Litty To cite this article: Jamie M. Litty (2016) How Real is Too Real for the Law? Realism versus Right of Publicity in Video Game Design, Journal of Broadcasting & Electronic Media, 60:3, 373-388, DOI: 10.1080/08838151.2016.1203314 To link to this article: http://dx.doi.org/10.1080/08838151.2016.1203314 Published online: 01 Sep 2016. Submit your article to this journal Article views: 112 View related articles View Crossmark data Full Terms & Conditions of access and use can be found at http://www.tandfonline.com/action/journalInformation?journalCode=hbem20 Download by: [The UC San Diego Library] Date: 22 May 2017, At: 07:16 How Real is Too Real for the Law? Realism versus Right of Publicity in Video Game Design Jamie M. Litty Realistic elements in video game design can inspire an appropriation claim, trademark dispute, or similar lawsuits, even when the underlying immaterial property from the real world was licensed. Video games can be First Amendment-protected expression, however, as in other media, there’s tension between the speech rights of creators and the personal rights of subjects. Furthermore, there’s disagreement from one jurisdiction to another regarding how much mimicry loses protection and how many dissimilarities are transfor- mative enough to be lawful. Analysis of case law reveals a balancing act between protecting video games as expressive works and protecting indivi- duals’ right of publicity. Despite their fantasy elements, many plot-driven or otherwise immersive video games are initially attractive to users because of their verisimilitude, i.e., their “realism.” This realism derives from a combination of factors, such as the lifelike appearance of characters and settings in some games, naturalistic movements of characters and tools, historical parallels in the stories of some, and logically con- sistent choices of game play. Along these lines, Ribbens and Malliet (2009) identified seven factors of perceived game realism, including freedom of choice, authenticity regarding subject matter, authenticity regarding characters, and social realism. Such emphases on diegetic probability and lifelike audiovisuals, or “graphics,” character- ize more than a few titles, in more than a few genres, including some, though not all, first-person shooters, role-playing games, and sports simulations. These design values have been praised from a variety of perspectives, from the user-oriented to the academic. For example, the aesthetic and informational value of Assassin’s Creed and other games that incorporate historical figures or wars and authentic-looking locales may have “ramifications that reach beyond art and into education” (VerBruggen, 2012, para. 16). Additionally, “researchers have made the important claim that sports video games are one of the few places that racial minorities are present as primary characters, in contrast with most other genres of Jamie M. Litty (Ph.D., Ohio State University) is an associate professor of Mass Communication at the University of North Carolina at Pembroke. Her current research interests include intellectual property law, perceived realism in media, and gender in broadcasting. © 2016 Broadcast Education Association Journal of Broadcasting & Electronic Media 60(3), 2016, pp. 373–388 DOI: 10.1080/08838151.2016.1203314 ISSN: 0883-8151 print/1550-6878 online 373 374 Journal of Broadcasting & Electronic Media/September 2016 video games” (Stein, Mitgush, & Consalvo, 2013, pp. 346–347). Looking at users of these sports “sims,” Stein, Mitgusch, and Consalvo (2013) found: [t]he emphasis on accurate rosters and its significance to the [users] and their propensity for recreating real-sporting events digitally suggest that their sports video game play is necessarily experienced as part of a broader sports context; they want their sports video game experiences to be simulative or at least closely related to the sports they experience through other media. (p. 361, emphasis added) To that end, the well-known American sports broadcaster Clark Kellogg will record up to 50 hours of exclamations and comments annually for basketball game NBA 2K, now in its seventeenth iteration, and the final audio mix—with its crowd noise, arena music, and sneaker squeaks—creates the sense of a real broadcast (Yenigun, 2013). Although Ribbens and Malliet (2009) found that from a gamer’s perspective “the rule-based characteristics of an electronic game count as better contributors to its overall reality impression than its audiovisual characteristics” do (p. 18), certainly those production values are a selling point, a façade that’s easily promoted, a hook to get consumers in the door. Indeed, graphics have long been a part of the rating process in critical reviews and continue to be part of the general video game conversation, be it in player communities or academic communities with regard to the graphicness of the violence. (Boyan, 2008, p. 13) Thus, although arguably the “best” graphics are “those that are rendered at the highest speed,” some fans think the best graphics are those “that most closely mimic visual reality” (Adams, 2006, pp. 74–75). In November 2013, Hoopsworld, an online publication of USA Today, called the newly released NBA 2K14 “almost too real” in its depiction of LeBron James, Kobe Bryant, and their ilk, not just because of details like James Harden’s bushy beard, but because the “eco-motion” engineer- ing gets “virtual LeBron” to “drive to the basket in that unstoppable freight-train way that only he can” (“NBA 2K14,” 2013, para. 1). Unfortunately for game publishers, this lifelike quality is precisely the factor that attracts litigation, at least as far as the law of immaterial property is concerned. Any of those elements that evoke someone or something in the real world can inspire an appropriation claim, trademark dispute, or similar lawsuits, if the underlying immater- ial property from the real world was not licensed, and sometimes even if it was. That video games can be a First Amendment-protected form of expression is well estab- lished law, however, as in other media enterprises, there is a tension between the speech rights of creators and the personal rights of their human subjects. Furthermore, there is some disagreement from one jurisdiction to another regarding how much Litty/HOW REAL IS TOO REAL? 375 mimicry is too much and thus loses protection for not being original, and how much customized game play and other dissimilarities are transformative enough to be lawful. This article uses U.S. case law to define the most common legal concerns engendered by video game expression that potentially has not transformed its inspiration source material enough, such that it borders on being “too real,” and plots the direction of American jurisprudence regarding immaterial property claims against those games. The research reveals a balancing act between protect- ing video games as expressive works and protecting individuals’ right of publicity, resulting in something of a double bind for video game design. A discussion notes that the global flow of popular culture raises the issue of personality rights in a diversity of jurisdictions. From Appropriation to the Right of Publicity Appropriation is one of the four media invasion-of-privacy torts recognized to varying degrees in the fifty states by statute or common law. Generally, appropriation is the act of “taking a person’s name, picture, photograph, or [other] likeness and using it for commercial gain without permission” (Pember & Calvert, 2013, p. 257). In some states, citizens are protected from appropriation by statute, but only when used in advertising per se, including trade dress such as packaging. In other states, the offending practices are not limited to advertising, but eligible plaintiffs are limited to public figures such as entertainers and other celebrities, because only those types of persons have a perceived right of publicity. The right of publicity is a property right that lays claim to the economic value in a person’s name or likeness. In some states, the concept of a likeness includes the sound of one’s voice. In some, appropriation can include evoking a professional’s “identity” by some combi- nation of attire, setting, catchphrase, or other trappings in lieu of a name or likeness (Motschenbacher v. R.J. Reynolds Tobacco Co., 1974; White v. Samsung, 1992). The U.S. Supreme Court has included in the right of publicity “an entertainer’s property interest in his act” (Zacchini v. Scripps-Howard Broadcasting Co., 1977, Outcome). Two of the earliest right-of-publicity lawsuits against video game publishers did originate from professional entertainers suing over some of those more nebulous aspects of personae. In Kirby v. Sega of America (2006), singer/dancer Kierin Kirby, formerly of the pop group Deee-lite, sued Sega after she was asked to help promote a U.K. version of the game Space Channel 5, in which the company was considering including the Deee-lite hit “Groove is in the Heart.” She declined, but her attention was called to the lead character of the game, “Ulala,” a reporter in outer space who dances her way through several levels of competition to rescue hostages and defeat an alien enemy. Kirby claimed the character’s appearance, attire, and name were all in imitation of her

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