The Use of Athletes in Video Games: Right of Publicity Unclear

On January 11, former pro wrestler Lenwood Hamilton brought suit in a Pennsylvania federal court against video game developer Epic Games, publisher Microsoft Studios, and former wrestler Lester Speight, for allegedly using his voice and likeness in the “Gears of War” video game series. Hamilton’s suit is the most recent in a series of long-running controversies regarding the use of celebrity likenesses in video games.

Hamilton, often referred to as “Hard Rock,” alleges that the game’s creators have misappropriated his identity and violated the Lanham Act by using both his likeness and voice for one of the game’s characters. He asserts that a collection of his voice recordings may have been accessible from his days as a professional wrestler, and that a voice analysis and comparison he obtained concluded that the voice of character “Cole Train” in the game is the same as his own. Hamilton has also asserted that the similarities between Cole Train’s image and his own infringe on his rights in his likeness as well. Hamilton seeks damages in the form of sales profits, royalties, and both compensatory and punitive damages.

At issue in this type of case generally is whether the voice and image used in the content are truly representative of the plaintiff. However, in the game’s promotional materials, the voice of Cole Train is credited to Lester Speight, the former wrestler Hamilton has also named in the case. Speight was awarded “Best Voiceover” by G4 TV for the game.

This recent line of cases surrounding the use of famous individuals in video games is not novel, and history may shed light on the likelihood of success for famous figures bringing suit for their likeness in such games. In 2014, celebrities Lindsay Lohan and Kate Gravano also took action against Take Two alleging–in separate but similar suits that were later combined–that the company unlawfully used their likeness without permission in the video game “Grand Theft Auto.” That case was ultimately dismissed by a New York appellate court four months ago, citing the First Amendment protection limitation to their right of publicity claims.

States like New York and California have seen a great deal of right of publicity claims like Hamilton’s. However, precedent has not been developed as extensively in Pennsylvania where Hamilton has brought his case.

Solid Oak Sketches, LLC v. 2K Games, Inc., No. 16CV724-LTS, 2016 WL 4126543, at *1 (S.D.N.Y. Aug. 2, 2016)

Gravano v. Take-Two Interactive Software, Inc., 142 A.D.3d 776, 37 N.Y.S.3d 20 (N.Y. App. Div. 2016)

Hamilton v. Speight et al, No. 2:17-CV-00169 (E.D. Pa filed Jan. 11, 2017)

Suevon Lee, Ex-Athlete Slaps Microsoft With IP Suit Over ‘Gears Of War’, Law360 (Jan. 11, 2017),

Nick Statt, Lindsay Lohan’s GTA V lawsuit has been tossed out because the game is satire, The Verge (Sept. 2, 2016),

Eugene Volokh, Lindsay Lohan and ‘Mob Wives’ star Karen Gravano lose Grand Theft Auto video game lawsuit, The Washington Post (Sept. 1, 2016),