Problem Of Publicity Right Involving Video Games

With the development of merchandising and internet technology, law isconfronted with more and more new problems. Problem of publicity right involvingvideo games is such a new challenge, namely, whether using other’s persona as therole of video game should be regulated or controlled by law. Currently, phenomenonof the video game problem has taken place in China, and it might be in a tendency ofbooming. However, China lacks academic discussion and judicial practice on thisproblem. Notably, the United States of America has plenty of judicial practice on thisproblem, which can provide helpful guidance for us to deal with this urgent problem.Part I firstly clarifies the three main justifications of publicity right:1, passingoff theory;2, natural right theory;3, incentive theory. Only passing off theory iswidely acknowledged for publicity right. Difference justifications reflect differentscope of publicity right, so this directly affects how to apply publicity right to videogame problem.Part II introduces the recent judicial practice of video game problem in theUnited States of America. The most important cases are Kirby v. Sega of America,Inc., No Doubt v. Activision Publishing, Inc., Hart v. Electronic Arts, Inc., Keller v.Elec. Arts Inc. and Brown v. Elec. Arts, Inc., which provides useful material for thefollowing analyses. Part III illustrates three different tests to determine the scope of publicity right,which includes:1, predominant use test;2, Rogers test;3, transformative use test.Predominant use test is too elusive to apply, therefore it is not supposed to be used forvideo game problem. Rogers test is used on the basis of passing off theory. UnderRogers test, video games problem does not involve infringement of publicity right.Transformative use test is used on the basis of natural right theory or incentive theory.Under Transformative use test, video game problem is very likely to infringe publicityright.Part IV further points out that video game problem normally does not infringepublicity right under passing off theory. Whether video game problem is regulated bypublicity right depends on the recognition of natural right theory or incentive theory.However, natural right theory and incentive theory are not recognized by the most ofother countries outside the United States of America and there is also no necessity torecognize it.Part V concluded that since China has not incorporated natural right theory orincentive theory, video game problem is involved in infringement of publicity right.