How Real is Too Real for the Law? Realism versus Right of Publicity in Video Game Design

Abstract

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 transformative enough to be lawful. Analysis of case law reveals a balancing act between protecting video games as expressive works and protecting individuals’ right of publicity.

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Jamie M. Litty

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.