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Could Your Technology Be Incriminating You?

Earlier this week, we wrote about how the government can lawfully compel a person to unlock their smart phone with the Touch ID feature (if the feature is enabled). Recently, Fitbit has been in the news because the popular fitness tracker device is being used as evidence in a Canadian civil court in a personal injury lawsuit. According to Forbes, in this landmark case, Fitbit data was volunteered by the owner of the device (the plaintiff) to support a claim that her activity level had decreased following an alleged injury.

This, one again, raises issues about the juncture between modern technology and consumers’ Fifth Amendment rights. So far, it appears that Fitbit data, or data from other wearable devices, have not been subpoenaed or used against the will of the device’s owner in the United States (or Canada). However, this case has opened Pandora’s box to the question of technology and self-incrimination.

 

What does this Mean for Tech Users?

Let’s say that you are accused of robbing a bank. There is no evidence against you, and your alibi is that you were at home taking a nap at the time of the crime. A judge may be able to compel you to produce your wearable technology to account for your heart rate at the time of the crime. In this case, elevated heart rate would equal incrimination.

 

What’s Next?

Some savvy prosecutor or plaintiff’s attorney may attempt to compel the production of wearable technology data in the near future. Using the analysis from the previous blog post on this topic, the pertinent question will be whether the production of data from one’s wearable technology is a “testimonial communication.” If producing one’s Fitbit, for instance, is not a testimonial communication, than the wearer may invoke her Fifth Amendment privilege against self-incrimination to stop production (or use) of the data in court.

 

For more information on this topic see coverage from Forbes and The Atlantic.

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The Right of Publicity: Likeness Lawsuits Against Video Game Companies

What do actress Lindsay Lohan, former Panamanian dictator Manuel Noriega, and U.S. World War II General George S. Patton have in common? Each is involved in a right of publicity lawsuit brought against video game companies earlier this year. Lohan, Noriega, and Patton’s estate have each filed lawsuits alleging that certain video game characters illegally use their likeness and identity without permission. Before discussing the individual facts of each of these cases, it is important to understand the basics of the right of publicity.

The right of publicity varies from state to state. As seen from California’s right of publicity statute, Cal. Civ. Code § 3344, any “person who knowingly uses another’s voice, signature, photograph, or likeness, without such person’s prior consent, shall be liable for any damages sustained by the person injured.” In 1992, the Ninth Circuit in White v. Samsung Electronics America, Inc. stated that, in bringing a right of publicity claim, one must show (1) the defendant’s use of the plaintiff’s identity, (2) the appropriation of the plaintiff’s name or likeness to the defendant’s advantage, (3) the plaintiff’s lack of consent, and (4) the plaintiff’s injury. In this case, Samsung released an advertisement that depicted a robot standing in front of a Wheel of Fortune board, wearing a blond wig, a gown, and jewelry, which was made to resemble Vanna White. Addressing Samsung’s argument that it did not use White’s actual name or person, the court held that White had a valid claim because “the common law right of publicity reaches means of appropriation other than name or likeness [alone].” The court noted that this right was designed to protect celebrities from the unauthorized commercial exploitation of their identity. However, the extent and strength of this right is hotly debated.

In July 2014, Lindsay Lohan filed a lawsuit in a New York state court against Take-Two Interactive and Rockstar Games, the creators of Grand Theft Auto V. Lohan alleged that an in-game character, Lacey Jonas, as well as promotional art and other merchandise depicting a young blond woman, use her image, likeness, and voice without her permission. In Grand Theft Auto V, Lacey Jonas is a blond celebrity who asks for your assistance in escaping from the paparazzi, during which she discusses the burdens of being famous. Lohan argued that the character’s image, voice, and clothing were very similar to her own, and that Rockstar Games, in designing the game’s promotional art, used a “look-alike model to evoke the persona and image” of Lohan in order to profit from her fame. Thus, Lohan alleged that such use falls squarely under her right of publicity and that these video game companies have commercially exploited her identity without her permission.

In the same month, former Panamanian dictator Manuel Noriega, who is currently serving a two decade prison sentence for drug trafficking, money laundering, and killing political opponents, filed a lawsuit in California against Activision Blizzard, the creator of Call of Duty: Black Ops II. Differing from Lohan’s situation, this game unambiguously includes Noriega as a character and even features a mission to capture him. Noriega argued that his portrayal “as a kidnapper, murderer and enemy of the state” damaged his reputation, and that the use of his image and name entitles him to a share of Activision Blizzard’s profits. In October 2014, a California court dismissed Noriega’s lawsuit, stating that “Noriega’s right of publicity is outweighed by defendants’ First Amendment right to free expression.” Interestingly, former New York mayor, Rudy Giuliani, spoke out in defense of Activision Blizzard, arguing that, if Noriega’s lawsuit was not dismissed, “[p]ublic figures, good ones, bad ones, who are included in books, movies and video games, all of these [people] would have a right to sue.”

There have been other of instances of similar lawsuits, such as one filed by the estate of George S. Patton against Maximum Family Games for the use of the WWII General in one of its games, as well as a successful case brought by Ryan Hart, a college football player, against Electronic Arts, Inc. for his portrayal in EA’s NCAA Football video game series.

Together, these cases shed light on the strengths and limits of the right of publicity. In Hart v. Electronic Arts, Inc., it was the fact that EA did not “sufficiently transform” Hart’s identity or appearance that contributed to the Third Circuit’s holding in favor of Hart. As the court stated, this “Transformative Use Test” helps dictate the balance between a video game publisher’s right of expression under the First Amendment and a celebrity’s right of publicity. The Third Circuit held that, because the “digital Ryan Hart [did] what the actual Ryan Hart did while at [college]: he play[ed] football, in digital recreations of college football stadiums, filled with all the trappings of a college football game,” this use was meant to be highly realistic and was not transformative. Because this use was not transformative, it was clearly an unauthorized appropriation of Hart’s identity for commercial profit.

Given this holding, it will be interesting to see, if Noriega appeals, how a California appellate court will deal with transformative use factors and First Amendment concerns. Although the digital Noriega is visually realistic and was a CIA informant, like Noriega was in real life, there may be transformative aspects in that the in-game character engages in fictional dialogues and events. Some, like Giuliani, fear that this “absurd” lawsuit will allow countless historical and famous figures to unjustly halt many films, books, and other works of art, impeding creative progress and free speech. The Lohan case presents an additional layer of complexity, in that the in-game character may not even be found to use Lohan’s identity and likeness. An analysis of the similarities between the in-game character and Lohan will be required before fully proceeding to a discussion of the balance between publicity rights and free speech. Through the medium of video games, these cases illustrate a growing tension between First Amendment concerns and celebrity publicity rights and have the potential to seriously affect future creative works, privacy rights, and free speech.

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Volume 28, Issue 1

Front Matter

Articles

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