Yesterday, the Ninth Circuit ruled that the EA video game NCAA Football did not qualify for First Amendment protection in its use of a character portraying football player Sam Keller. EA used all but his face and name – jersey number, position, and a biography similar to his. But nothing else. The ruling came after Keller sued EA, claiming that the game infringed on his “right to publicity” – basically, his right to control the use of his likeness or identity. The EFF article has a lot of the details, such as what test the Ninth Circuit applied to reach this ruling and how it differs from other similar, but not identical, recent rulings. It also quotes the dissenting judge in the case, Sidney Thomas:
The logical consequence of the majority view is that all realistic depictions of actual persons, no matter how incidental, are protected by a state law right of publicity regardless of the creative context. This logic jeopardizes the creative use of historic figures in motion pictures, books, and sound recordings.
And, by extension, role-playing games – which are likely to fall under the same likeness test used in the EA case. In both a football video game and a tabletop rpg, you can actively play the character. Or, to split hairs, in the video game you can control the virtual playing piece representing the character. In a TTRPG, you can actually play the character. Direct his actions, assign motivation and purpose, and otherwise try to realistically simulate the character in question.
Now this isn’t to say that a lawsuit might be brought against a roleplaying company for including, say, a 15-year older version of some celebrity. The ruling is relatively narrow. But it opens the door for all kinds of legal shenanigans instigated by some celeb who gets it stuck in their craw that they don’t like how they were depicted in a roleplaying game. Considering that roleplaying games straddle a nebulous zone between game and fiction, an unfavorable ruling in such a case could set a further dangerous precedent.