The Transformative Test: How Courts Are Still Trying to Deny Video Game are Art

October 9, 2013

Tuesday, October 8, 2013, by Matthew Viva
At the end of last month Electronic Arts, the largest video game developer in the world, announced that they would be putting one of their most successful game franchises on hold—maybe forever.  For the first time since 1997 (1993, if you count EA’s Bill Walsh series) gamers will not be able to purchase a copy of EA’s NCAA Football series from their annoyingly insistent, local GameStop Employee.
Of course, the O’Bannon settlement is the most immediate culprit for this demise (check out fellow JOLT-ite Catherine Perez’s article for more); but it was just the last, thorny figurative branch EA hit on its way down.  The fateful push came a few months earlier, in successive opinions by the Third and Ninth Circuits rejecting EA’s right to expression in their works defeated the right of publicity claims advanced by college athletes for the usage of their likeness.

When applied to video games, the transformative test effectively punishes developers for the development of realism in their games and assigns liability where a likeness has been recreated most faithfully to its source material.  Yet, can you imagine the reverse being applied to movies or books?

These decisions, Hart v. Electronic Arts (Third Circuit) and In Re Student-Athlete Name & Likeness Licensing Litigation (Ninth Circuit), recognized that video games were a protected work under the First Amendment but nonetheless held that EA’s freedom of expression had to be balanced against a student’s right to his likeness.  To determine whether the appropriation of the player’s images were kosher, each court set about applying something called the transformative test to EA’s depiction of the in-game avatars of the athletes.
In a general sense, the test evaluates the work as a whole and tries to find sufficient expressive elements which make the depiction the author’s own rather than that of the player’s.  The courts look at the alleged likeness in the context of its work and attempt to determine whether the author transformed the image enough to make the likeness his own expression.  This kind of analysis looks at whether the alleged likeness was one of many raw materials used by the author in crafting his creation, or whether the author has simply appropriated the celebrity’s image, from their looks to the activities they are known for, and transplanted them into his work.  Acceptability is the difference between modeling a character on a celebrity, but placing the character in a wholly unique and fantastic universe (acceptable) and digitally recreating a celebrity likeness but placing it in the same setting they achieved their celebrity (not).
For a contemporary example consider Commander Shepard, protagonist of BioWare/EA’s Mass Effect series.  The Commander is based on the likeness of Dutch Model, Mark Vanderloo.  Bioware has molded Shepard’s appearance to almost completely match that of Vanderloo, from musculature to the scar on his forehead.  Yet in any transformative analysis, Shepard would almost certainly be seen as an expression of BioWare.  This is because the likeness of Vanderloo has only been used as a raw material in creating the appearance of the Commander; the author has then placed that avatar in the 25th Century and set him to fighting aliens, romancing blue women, and saving the Universe.
The problems with this test are many and I do not have time to get into all of them, but detailed write ups from people much smarter than I can be found here and here.  What bothers me is the clearly disparate treatment of publicity rights in video games from more traditional expressive media.  When applied to video games, the transformative test effectively punishes developers for the development of realism in their games and assigns liability where a likeness has been recreated most faithfully to its source material.  Yet, can you imagine the reverse being applied to movies or books?
Under this version of the test, punishing an artist for the most faithful depiction of a celebrity he can, could films like The Social Network exist without licensure?  What about documentaries?  Could any biography be published?  All of these traditional forms derive appeal on the most accurate depiction of their targeted celebrity within the venue he/she achieved their celebrity, yet courts have never questioned their first amendment entitlements.  Are games that much different than these traditional forms that they should suffer increased punishments?
The Supreme Court sure doesn’t seem to think so, ruling in a 7-2 decision that “[l]ike the protected books, plays and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices . . . and through features distinctive to the medium . . . . This suffices to confer First Amendment Protection.”    So if they have the same communications as traditional media, are entitled to the same rights, and indeed having even further potential to be expressive through features distinct to the medium, why hold games to a different standard?
This disparate treatment, in a time where games are increasingly trying to tell more legitimate, compelling, and yes, realistic stories, could have even more negative consequences on the $56 billion industry than just one scrapped franchise.  How will the application of such a test treat Fantasy Sports games, which derive appeal from precise depictions of an athlete? Or the unlicensed depiction of a sport’s retired greats in-game? Both have attracted these types of publicity suits in the past.
Now, as a mere law student I am uncomfortable calling the Circuit Court decisions’ bad law, but I have no problem letting a seasoned professional do it for me.  In my opinion, the courts’ application of this test plays only lip-service to gaming’s first amendment rights and betrays misappreciation of the medium’s overall artistic merits.  The decision, and the franchise it devastated, will only serve to push games more toward a norm of altered realism and fanciful creations.  Perhaps into the realms of arcade parody-violence like NFL Blitz or cutesy, hyper-fanciful games like Space Channel 5 (warning: you will never get the time back that you spend watching that).  At the very least, the industry will be more hesitant in how they craft their characters.
Gaming has made great strides from the simplistic days of PONG and Pac-Man to the sprawling epics of today.  Now if only the courts could grow with it.