Jennifer Lloyd Kelly, Fenwick & West litigation partner and leader of the gaming and digital media industry team, was quoted by The Recorder in an article about a developing trend in fair use lawsuits involving celebrity likenesses in video games.
The Recorder story focuses on a pending lawsuit brought by CMG Worldwide, Inc. over a video game in which players assume the role of General George Patton. CMG claims that the game's manufacturer, Maximum Family Games LLC, misappropriated Patton's image, to which CMG says it has exclusive rights.
In its analysis, the publication mentions a case brought by former Panamanian dictator Manuel Noriega over his portrayal in another video game. A Los Angeles judge dismissed that case after determining that the game makers had sufficiently transformed Noriega's image, which was not a key feature in the game.
Asked for her take on the Patton lawsuit in light of the Noriega decision, Kelly told The Recorder that the difference between the late general's reputation and the former dictator's reputation could affect the case outcome. "Patton and Noriega. Not the same," she said.
Kelly also noted that if CMG prevails, there might be a cap on damages, given California's statute on publicity rights after death. The state has a 70-year limit, and the 70th anniversary of Patton's death is just over a year away.
The full article is available through The Recorder's website (subscription required).