District court grants motion for summary judgment, holding that defendant video game developers’ First Amendment right to free expression in creating character that allegedly resembled plaintiff, former professional wrestler and football player who performed as “Hard Rock Hamilton,” outweighs plaintiff’s right of publicity because game character is transformative use of Hamilton’s Hard Rock character.

Plaintiff Lenwood Hamilton, a former professional wrestler and football player, created and performed as the character Hard Rock Hamilton in the 1990s. Plaintiff subsequently brought an action against defendants Microsoft, Inc., Microsoft Studios, The Coalition, Epic Games, Inc., and Lester Speight for misappropriating his Hard Rock Hamilton character when they created a character for the popular Gears of War video game series, Augustus Cole.

The district court granted defendants’ motion for summary judgment on First Amendment grounds, holding that defendants’ First Amendment right to free expression in creating the Cole character that allegedly resembled plaintiff outweighed plaintiff’s right of publicity.

In coming to this conclusion, the court held that when parties assert competing rights to publicity and free expression, a court must balance the interests underlying the right of free expression against the interest in protecting the right of publicity, through use of the transformative use test, which turns on whether the product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.

Looking at the Cole character’s likeness and biographical information, the court found that the Cole character satisfied the transformative use standard, reasoning that if the Hard Rock Hamilton character influenced the creation of the Cole character at all, it was at most one of the “raw materials” from which the Cole character was synthesized rather than the “very sum and substance of the” Cole character.

For example, the Cole character’s name, Augustus “Cole Train” Cole, did not bear any resemblance to the Hard Rock Hamilton character’s name, and Hamilton did not identify any other aspects, besides playing a sport, of the Cole character’s biography (for instance, age or birthplace) that his persona shared.

Plaintiff pointed to the fact both characters were large, muscular African American males with similar faces, hair styles, skin tone and body build, but the court found that this sharing of broad likeness was not enough to overcome the conclusion that the Hard Rock Hamilton likeness was not the sum and substance of the Cole character’s likeness, noting that the Cole character’s primary avatar wears futuristic, cartoonish heavy armor on his torso and carried various weaponry, and Hard Rock Hamilton did not wear any of those clothing components.

The court also found that the Cole character appeared in the profoundly transformative context of the Gears of War games. While Hard Rock Hamilton performed as a professional wrestler in Soul City Wrestling on the planet Earth, the Cole character battled formerly subterranean reptilian humanoids. The court found that the differences in those roles was such a profoundly transformative change in the likeness between the Cole character and Hard Rock Hamilton that it was protected by the First Amendment under the transformative use standard.