Both have recently brought legal actions against video game makers alleging that their rights of privacy or publicity have been violated by characters in video games. The lawsuits are the latest in a series of high profile disputes that pit an individual’s personality rights against a game maker’s First Amendment rights.

Various states have enacted statutes that protect an individual’s right to “publicity” or “privacy.” The statutes differ from state-to-state but the basic idea is that an individual should have some right to prevent unauthorized commercial use of his or her name, likeness and identity by a third party. This is sometimes referred to as “personality rights.”

The expressive content of video games, on the other hand, is subject to protection under the First Amendment. The extent to which the First Amendment rights of a video game manufacturer may permit the use of real people as characters in video games without violating the individual’s personality rights has been the subject of much interest and discussion in the recent past.

The discussion resumed in earnest in early July when Ms. Lohan brought an action in New York state court alleging that the maker of the video game Grand Theft Auto V had violated her right of privacy under New York state law by the use of her image, likeness, “screen persona” and details from her personal life in depicting a character in the game named Lacey Jonas. A few weeks later, Mr. Noriega brought an action in California state court alleging that the maker of the video game Call of Duty: Black Ops II violated his right of publicity under California state law by illegally using his image and likeness in connection with a character described “as a kidnapper, murderer and enemy of the state.” The lawsuits have been treated by some in the media and by some commentators with a certain degree of amusement and in Mr. Noriega’s case – whose colorful resume includes convictions for drug trafficking, racketeering and money laundering as well as a lengthy stint as a U.S. Prisoner of War – outright disbelief, but they raise serious issues regarding the interplay between the First Amendment and the rights of privacy and publicity.

The ultimate decision in both cases, should it come to that, may hinge on whether the depiction of the individual is sufficiently transformative to warrant First Amendment protection. In decisions last year, both the Third Circuit Court of Appeals and the Ninth Circuit Court of Appeals addressed the issue of whether the use of the likenesses of college football players in the NCAA Football video game violated the players’ rights of publicity. See In re NCAA Student-Athlete Name & Likeness Licensing Litigation, 724 F.3d 1268 (9th Cir. 2013); Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013). In applying the Transformative Use Test – a balancing test that looks to see whether the work in question adds significant creative elements so as to be transformed into something more than a mere depiction of a celebrity likeness – both Courts agreed that the use of the likeness of a college football player in a very realistic game about college football was not sufficiently transformative to warrant First Amendment protection. As a result, both Courts concluded that the video game makers could be liable for violating the rights of publicity of the football players. In an earlier case, the band No Doubt was successful in a similar action brought against the maker of the Band Hero video game, in part, because the California Court of Appeals found that the use of the likeness of members of the band in a game about rock bands also was not sufficiently transformative to warrant First Amendment protection. See No Doubt v. Activision Publ’g, Inc., 192 Cal. App. 4th 1018 (2011). In contrast, one example of a transformative use can be found in the comic book world, where the California Supreme Court found that the conversion of musicians Edgar and the recently deceased Johnny Winter into fanciful half worm comic book villains Edgar and Johnny Autumn was sufficiently transformative to defeat a right of publicity claim. See Winter v. DC Comics, 30 Cal. 4th 881 (2003).

Similar issues arise with claims of trademark infringement and false endorsement under the Lanham Act, but some Courts have applied a different standard that imposes a higher burden on the plaintiff. This was demonstrated when the same Ninth Circuit Court of Appeals panel rejected a claim of false endorsement under Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)) brought by legendary running back Jim Brown against a video game maker for using his likeness in a game about pro football. See Brown v. Electronic Arts, Inc., 724 F.3d 1235 (9th Cir. 2013). In affirming the dismissal of Mr. Brown’s claim, the Court found that although Section 43(a) protects the public’s interest in being free from commercial consumer confusion about affiliations and endorsements, this protection is limited by the First Amendment. Applying the test set forth in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), the Ninth Circuit found the use of Mr. Brown’s likeness did not violate the Lanham Act because: (1) the importance of realistically re-creating Mr. Brown’s likeness in a game about NFL football meant that the use has at least some artistic relevance; and (2) the use did not explicitly mislead consumers about Mr. Brown’s endorsement of the game. The message was not lost on Mr. Brown, who promptly commenced an action in the California state court against the video game maker for violation of his right of publicity.

The discussion is not likely to end with the resolution of the Lohan and Noriega disputes. As one judge noted in the Ninth Circuit In re NCAA dissent opinion, the stakes in these particular games “are not small.”