A video-game series called Gears of War did not violate the publicity rights of a former athlete and entertainer because the video-game character was a transformative use and protected by the First Amendment, a federal appeals court has ruled.
Lenwood Hamilton, a former member of the NFL’s Philadelphia Eagles and founder of Soul City Wrestling, said a character in Gears of War was modeled after him. The character Augustus “Cole Train” Cole is a member of the Delta Squad, which battles reptilian humanoids in the video game.
Hamilton said he thought he was “looking in a mirror” when he first saw the character. He sued, alleging that the game creators had violated his right of publicity, which protects individuals from having their identities misappropriated.
However, the defendants contended that Augustus Cole was a transformative use and was their own expression protected by the First Amendment. A federal district court granted the defendants’ summary judgment.
On appeal, a three-judge panel of the 3rd U.S. Circuit Court of Appeals affirmed in its Sept. 17, 2020, opinion in Hamilton v. Speight. The panel acknowledged some similarities between Hamilton and the character Cole, including “similar skin colors, facial features, hairstyles, builds, and voices.” Furthermore, both played football.
However, the appeals court panel emphasized some key differences between Hamilton and the character Cole, including:
- Cole fights “a fantastic breed of creatures in a fictional world,” and Hamilton does not.
- Cole has a persona that is “alien” to Hamilton’s.
- Cole is a member of the Delta Squad, while Hamilton never served in the military.
The 3rd Circuit panel concluded: “If Hamilton was the inspiration for Cole, the likeness has been so transformed that It has become primarily the defendant’s own expression.”
David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of First Amendment: Freedom of Speech (2012), of a 12-part lecture series titled Freedom of Speech: Understanding the First Amendment (2018), and of a 24-part lecture series, The American Constitution 101 (2019).