New York court dismisses complaint alleging that NBA2K video game used name and likeness of street basketball player known as “Hot Sauce” to create nonplayable character known as “Hot Sizzle.”
Philip Champion, a street basketball star known as “Hot Sauce,” filed a right of publicity suit against Take Two Interactive Software Inc. for allegedly using his likeness in its NBA2K video game. The NBA2K game has different game modes, one of which allows the user to create an avatar that goes through the process of trying to get drafted by an NBA team. Within that game mode, the user can engage in three-on-three basketball games on street courts, including with a character named “Hot Sizzle.” Champion alleged that the Hot Sizzle character misappropriated his name and likeness. Take Two argued that the Hot Sizzle character did not sufficiently resemble plaintiff, that its use of Hot Sizzle fell within the incidental use exception to New York’s statutory right of publicity law, and that the NBA2K game is protected speech such that it does not fall under the statutory definition of “advertising or trade.”
In analyzing Champion’s claim, the court relied on an appellate decision in a similar case involving celebrity Lindsay Lohan’s claim that the video game Grand Theft Auto, which is also made by Take Two, misappropriated her name and likeness in creating a character named “Lacey Jonas.” There, the court held that the images of the character in the game were not recognizable as Lohan but rather a “generic, artistic depiction of a twenty-something woman and indistinct, satirical representation of the style, look, and persona of a modern beach-going woman” and that the Lacey Jonas character was “nothing more than a cultural comment,” which is not actionable.
The court explained that the Hot Sizzle character in NBA2K and plaintiff similarly did not bear any resemblance to each other outside of the fact that they both appear to be male, be African American and play basketball. The court explained that, in the case of Lohan, the physical appearance of the game character was much more similar to the plaintiff, but yet still held to be not actionable as a matter of law.
The court also explained that, although Champion alleged that he is “ubiquitously known as Hot Sizzle,” nicknames fail to qualify for protection as a matter of law and only a limited expansion has been recognized for stage or fictitious names. The court noted that Take Two put forth evidence, including printed copies of Google, Wikipedia and IMDB searches, that Champion was not sufficiently well-known as “Hot Sizzle,” but rather as “Hot Sauce.”
The court went on to explain that Take Two’s use was incidental in nature, as the character was peripheral to the game and did not have a “direct and substantial connection” to the “main purpose and subject of the work.” The character added “nothing of true substance to a user’s experience in the game,” the court found.
Lastly, the court addressed Take Two’s argument that the NBA2K game was a work of fiction or satire protected from New York’s right of publicity law. The court explained that, unlike Grand Theft Auto, which contains a story, characters, dialogue and environment, NBA2K allows the user to create a plot, storyline and character, and therefore the game is not sufficiently literary to be immune from claims under the right of publicity law.
Summary prepared by Tal Dickstein and Camron Dowlatshahi