In cases like Keller and No Doubt v. Activision, the federal courts held that the use of celebrity's likeness was a violation of the right of publicity. In response, EA Sports suspended production of college sports games. But most games still allow for gamers to create their own avatars. With game systems now being connected, gamers can download user-created content many of which will have the likeness of famous people, thus circumventing the holdings in Keller and No Doubt. Accordingly, this article examines how this type of user generated content fits within the law of appropriation. First, this article discusses how modding is changing gaming content and use. This article then outlines the law of misappropriation. Next, the article argues that these mods might be a violation of the right to publicity and that producers may be vicariously liable for creating the software. Finally, the paper extends this theory into virtual technology and how user generated content may refocus the law of misappropriation to likenesses of non-celebrities.
Jason Zenor, If It's in the Game: Is there Liability for User-Generated Characters' Likeness?, 16 J. Marshall Rev. Intell. Prop. L. 291 (2017)