LENWOOD HAMILTON, a/k/a HARD ROCK or SKIP HAMILTON, Appellant v. LESTER SPEIGHT, a/k/a RASTA THE URBAN WARRIOR, a/k/a AUGUSTUS "COLE TRAIN" COLE; EPIC GAMES, INC.; MICROSOFT, INC., a/k/a Microsoft Corp; MICROSOFT STUDIOS; THE COALITION

For Lenwood Hamilton, Plaintiff - Appellant: Carolynn Beck, Esq., Hecht Partners, New York, NY; Patrick A. Bradford, Esq., Pierce Bainbridge Beck Price & Hecht, New York, NY; Tillman J. Breckenridge, Esq., Washington, DC; Benjamin E. Gordon, Esq., Joe N. Nguyen, Esq., Stradley Ronon Stevens & Young, Philadelphia, PA; Claiborne R. Hane, Esq., Pierce Bainbridge Beck Price & Hecht, New York, NY; Maxim Price, Esq., Hecht Partners, New York, NY.

For Lester Speight, Microsoft Studios, The Coalition, Defendants - Appellees: Ambika K. Doran, Esq., Davis Wright Tremaine, Seattle, WA; William T. Hangley, Esq., Bonnie M. Hoffman, Esq., Hangley Aronchick Segal Pudlin & Schiller, Philadelphia, PA; Elizabeth A. McNamara, Esq., Davis Wright Tremaine, New York, NY; Alison B. Schary, Esq., Davis Wright Tremaine, Washington, DC.

For Epic Games Inc, Defendant - Appellee: Ambika K. Doran, Esq., Davis Wright Tremaine, Seattle, WA; William T. Hangley, Esq., Bonnie M. Hoffman, Esq., Hangley Aronchick Segal Pudlin & Schiller, Philadelphia, PA; Andrew R. Shores, Esq., Elizabeth C. Stone, Esq., Robert C. Van Arnam, Esq., Williams Mullen, Raleigh, NC.

For MICROSOFT, Inc., Defendant - Appellee: William T. Hangley, Esq., Bonnie M. Hoffman, Esq., Hangley Aronchick Segal Pudlin & Schiller, Philadelphia, PA; Elizabeth A. McNamara, Esq., Davis Wright Tremaine, New York, NY; Alison B. Schary, Esq., Davis Wright Tremaine, Washington, DC.

Before: CHAGARES, HARDIMAN, and MATEY, Circuit Judges.

MATEY

OPINION*

MATEY, Circuit Judge.

[*239] Lenwood Hamilton argues that defendants unlawfully used his likeness in a video game. The District Court held that the First Amendment barred Hamilton's claims. We agree and so will affirm.

I. Background

Hamilton is a former professional athlete, entertainer, and motivational speaker. Following a brief football career, he created Soul City Wrestling, a "family-friendly" organization where he performed as "Hard Rock Hamilton." (App. at 417.) Hamilton hoped to spread a "message to kids about drug awareness, and the importance of getting an education." (App. at 417-18.) His work attracted positive attention from Philadelphia media and elected officials.

Gears of War is a video game series in which members of the Delta Squad—including Augustus "Cole Train" Cole—battle "a race of exotic reptilian humanoids" known as the Locust Horde on the planet Sera. (Opening Br. at 5.) A few years ago, Hamilton saw the game [**2] for the first time. "Looking at the Augustus Cole character," he felt, "[wa]s like looking in a mirror." (App. at 418.) So he sued.

Hamilton's complaint alleged that defendants1 used his likeness in violation of his right of publicity.2 Defendants argued that their work enjoyed the protections of the First Amendment . The District Court agreed and granted their motion for summary judgment. This appeal followed.3

II. Discussion

The right of publicity protects individuals "from the misappropriation of their [*240] identities." Hart v. Elec. Arts, Inc., 717 F.3d 141 , 150 (3d Cir. 2013); see, e.g., 42 Pa. C.S. § 8316(a) . But the First Amendment protects the freedom of speech, including the content of video games. Hart, 717 F.3d at 148-49 . To "strike a balance between [these] competing interests" in right-of-publicity cases, id. at 149 , we ask "whether the [plaintiff's] likeness is one of the 'raw materials' from which [the defendant's] work is synthesized, or whether the depiction or imitation of the [plaintiff] is the very sum and substance of the work in question." Id. at 160 (quoting Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 , 106 Cal. Rptr. 2d 126 , 21 P.3d 797 , 809 (Ca. 2001)). "[I]n other words," this "transformative use test" asks "whether the product containing [the plaintiff's] likeness is so transformed that it has become primarily the defendant's own expression[.]" Id. (quoting Comedy III, 21 P.3d at 809 ). If it has, the defendant's First Amendment rights prevail.

Here, no reasonable jury4 could conclude that Hamilton—whether Lenwood or Hard Rock—is the "sum and substance" of the Augustus Cole character. There are no doubt similarities. Hamilton and Cole have similar skin colors, facial features, hairstyles, builds, and voices. Hamilton played football for the Philadelphia Eagles; Cole once played "thrashball"—a "fictionalized sport that loosely imitates American football" (Opening Br. at 5)—for a team with that same name. And Gears of War players can dress Cole in a "Superstar Cole" outfit that resembles Hard Rock Hamilton's signature costume.

But other significant differences reveal that Hamilton was, at most, one of the "raw materials from which [Augustus Cole] was synthesized." Hart, 717 F.3d at 160 . In Gears of War, Cole fights a fantastic breed of creatures in a fictional world. Hamilton, of course, does not. Cf. Kirby v. Sega of Am., Inc., 144 Cal. App. 4th 47 , 50 Cal. Rptr. 3d 607 , 616 (Cal. Ct. App. 2006) (transformative use where musician depicted in video game "as a space-age reporter in the 25th century"). Nor has Hamilton served in the military. Cf. Hart, 717 F.3d at 166 (no transformative use where game depicted "digital [football player] do[ing] what the actual [football player] did while at Rutgers: . . . play[ing] college football, in digital recreations of college football stadiums, filled with all the trappings of a college football game"); No Doubt v. Activision Publ'g, Inc., 192 Cal. App. 4th 1018 , 122 Cal. Rptr. 3d 397 , 411 (Cal. Ct. App. 2011) (no transformative use where game featured "exact depictions of [band's] members doing exactly what they do as celebrities"—i.e., singing and playing music). And Hamilton himself admits that the Cole character's persona is alien to him. (App. at 581 ("This guy . . . is ignorant, he's boisterous and he shoots people, he cusses people out, that's not me. . . . [a]nd it's totally against what I believe in. . . . He stands for totally the opposite of what I was trying [**3] to do[.]").) Cf. Winter v. DC Comics, 30 Cal. 4th 881 , 134 Cal. Rptr. 2d 634 , 69 P.3d 473 , 476 , 479 (Cal. 2003) (alleged depiction of musicians Johnny and Edgar Winter as "Johnny and Edgar Autumn" in comic book protected by the First Amendment ; though the Autumns shared physical attributes and style of dress with the Winters, the Autumns were "depicted as villainous half-worm, half-human offspring born from the rape of their mother by a supernatural worm [*241] creature that had escaped from a hole in the ground"—i.e., were "but cartoon characters . . . in a larger story, which is itself quite expressive").5

III. Conclusion

If Hamilton was the inspiration for Cole, the likeness has been "so transformed that it has become primarily the defendant's own expression." The First Amendment therefore bars Hamilton's claims, and we will affirm the District Court's grant of summary judgment.