TAKE-TWO CONTINUES TO PREVAIL IN MULTIPLE RIGHT OF PUBLICITY CASES
Steven T. Lowe
On May 13, 2019, video game developer Take-Two Interactive Software Inc. (“Take-Two”) defeated yet another lawsuit, this time claiming its “NBA 2K” games featured a street basketball star known as “Hot Sauce.”
New York state Judge Frances A. Kahn ruled that a character in Take-Two’s 2018 NBA 2K is not “recognizable” as Philip Champion (“Champion”), a longtime member of a traveling basketball competition and exhibition presented by B-Ball and Company and the basketball apparel manufacturer AND1. According to Judge Kahn, “The avatar in NBA2K18 plaintiff claims is an appropriation of his likeness bears no resemblance to plaintiff whatsoever…The only reasonable commonalities…between plaintiff and the avatar are that both are male, African American in appearance and play basketball.”
The ruling comes as the latest win for Take-Two who has been subject to multiple publicity cases which claim the company violated “rights of publicity” by using the name or likeness of real-life people in its video games. Previously, actress Lindsay Lohan and reality TV star Karen Gravano both claimed they were used in “Grand Theft Auto V,” but their cases were tossed on similar grounds by New York’s highest court.
Judge Kahn cited those earlier decisions in his May 13, 2019 ruling, saying “the game characters at the center of Lohan and Gravano’s lawsuits had been “distinctly closer in appearance” to those actresses but were “still not actionable as a matter of law.”
In addition to physical similarities, Champion’s complaint against Take-Two also cited the fact that the avatar in the game was named “Hot Sizzle” – a name he said was a reference to his longtime nickname of “Hot Sauce,” but Judge Kahn did not accept that argument. “The evidence submitted by both parties supports that plaintiff’s primary performance persona is ‘Hot Sauce,’ which is entirely distinct from the name in the video game…Absent any tenable connection or claim to plaintiff being recognizably known as ‘Hot Sizzle,’ naming the avatar similarly also does not aid in the visual recognition of it as plaintiff.”
Take-Two is represented by Edward H. Rosenthal and Lily Roos of Frankfurt Kurnit Klein & Selz.
Champion is represented by Funsho Ilorin of Sobo & Sobo LLP.
The case is Champion v Take Two Interactive Software Inc., case number 158429/2018, before the Supreme Court of New York, New York County.
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