Fame, Artistry and the Law: A Dual Jurisdiction Evaluation of Publicity Rights in Video Games

This dissertation takes a deep dive into the intriguing connections between trademark law, image rights, and the ever-changing video game world. The video game industry has come a long way from simple graphics to immersive virtual experiences, with trademarks playing a key role in safeguarding brand identity. The use of celebrity images adds a touch of realism to games, and in the US, there are strong laws protecting against their unauthorised use. Examining this legal structure reveals that the interaction among trademarks, the protection of celebrity rights, and the cultivation of artistic expression holds significant significance. Innovations like the Rogers and transformative-use tests offer valuable perspectives on achieving this intricate equilibrium. This paper shifts its focus to the UK, where it explores how image rights are protected and how passing off plays a crucial role when specific publicity rights are lacking. This sets the stage for a comparison with the US approach, where it delves into the complexities of UK image rights protection. Additionally, this dissertation also demonstrates that privacy regulations and acts pertaining to data protection have augmented the rights of individuals within this domain.

Finally, this paper brings together the pieces of the puzzle and proposes the need for a new publicity right tort in the UK. This becomes especially important as advanced video games become more prominent, raising questions about how identity rights are respected. Drawing inspiration from the US and innovative legal tests, it explores how a new tort could balance the freedom of expression with image rights.

It also peeks into the future, analysing current challenges like user-generated avatars and AI-generated content, which could make unauthorised likeness usage a concern. This study emphasises the pressing need to modernise the UK's strategy concerning image rights through a more profound comprehension of the intricate connections between trademark law, image rights, celebrity likenesses, and the realm of video games.

This working paper is a part of the "Outstanding LLM Dissertations 2023".