Game Distributor Moves To Dismiss Patton Videogame “Right Of Publicity” Lawsuit

506008906A videogame distributor has moved to dismiss a lawsuit against it, alleging that the videogame uses the name and likeness of renowned U.S. Army General George S. Patton, Jr. without permission.  Though videogame “right of publicity” lawsuits are hardly knew, the federal court presiding over the Patton case will be called upon to decide several issues not typical of such cases.

Maximum Games is the alleged publisher/distributor of the videogame HISTORY Legends of War: Patton.  On November 19, 2014, CMG Worldwide Inc. (the Patton family’s exclusive worldwide licensing agent for General Patton’s name, likeness and persona) sued Maximum in federal district court, claiming that Patton’s depiction in the game and game packaging infringes valuable rights of publicity held by the Patton family.  Maximum has responded, in part, by filing a special motion to strike the Complaint under California’s “Anti-SLAPP” statute–a statute mandating dismissal of a lawsuit where the movant shows that two factors are present: (1) the plaintiff’s claims arise from an act of the defendant in furtherance of its constitutional rights of freedom of speech; and (2) the plaintiff cannot establish a probability of prevailing on its claims.  California law now universally recognizes videogames as a form of expressive work, entitled to First Amendment protection.  It will therefore likely fall to CMG to establish a probability of success on its claims sufficient to overcome Maximum Games’ prima facie Constitutional defenses if its lawsuit is to proceed.

An issue in the case not generally present in videogame “right of publicity” cases is that California law prescribes narrower protections for public figures who are deceased than for those that are living.  A separate statute governs the publicity rights of deceased persons (Cal. Civ. Code section 3344.1), and includes a broad carve-out from its provisions of “a play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, [or] work of political or newsworthy value[]” if it is fictional or non-fictional entertainment, or a dramatic, literary, or musical work.  Videogames are invariably a form of “entertainment,” but are not expressly listed in the statute as an exempted form of publication.  The federal court will therefore need to decide whether the statute’s carve-out for “audiovisual works” should be read to encompass videogames.  Maximum Games urges such a construction of the law, referring the Court to similar language in the Copyright Act that has been held to include videogames.

Another aspect of this case that sets it apart from other videogame “right of publicity” cases is the need for the plaintiff to establish that it has standing to bring the lawsuit.  Generally, right of publicity claims are brought by living individuals whose publicity rights are allegedly violated.  (Recent lawsuits include those by the band No Doubtactress Lindsay Lohan, and even deposed Panamian dictator Manuel Noriega.)  In the case of a deceased individual, however, California law requires the individual’s “successor-in-interest” to register a claim of rights with California’s Secretary of State as a precondition of any damages award.  Maximum Games maintains that General Patton’s heirs did not properly register their alleged rights to vindicate General Patton’s right of publicity.  Instead, they allegedly designated an individual who is not a plaintiff in the pending lawsuit; and before that, generally designated the Patton family (but no specific individual).

Maximum argues that its alleged use of General Patton’s likeness is in any event Constitutionally protected as fair use.  This argument may carry particular weight given General Patton’s undeniable role in history, and a general need to include him in any complete World War II history.  Nevertheless, the federal court’s interpretation of California’s publicity statute as applied to videogames has the potential to carry the greatest precedential importance.