In light of President Obama’s appearance in Madden NFL 11 and the upcoming NBA 2K11, Kotaku took a look at the Politics of Presidential Appearances.
In both games, a representation of Obama is used to help celebrate a Super Bowl win or an NBA championship. While the President does have rights to his likeness, Villanova University School of Law Professor Michael Risch stated that, “A sitting president is probably never going to sue.”
Essentially, a president is the one A-list celebrity you get to use for free, provided you’re not too egregious about it. A sitting president filing a civil suit over the unauthorised use of his image is as bad a play politically as could be imagined, especially if the work in which he’s appearing is complimentary and respectful as is the case with Madden and NBA 2K.
The piece argues that a President would never sue over the use of his likeness, unless his family was involved and/or depicted, or his appearance was meant to construe an endorsement of sorts, neither of which comes into play with his popping up in videogames. While Obama does appear in NBA 2K11 with a Spalding basketball, Kotaku notes that it is the official league ball.
While Obama could sue, but probably won’t, Jas Purewal over at the UK’s Gamer/Law blog was inspired by the Kotaku piece enough to theorize about the similar usage of Prime Minister David Cameron's likeness.
There is no equivalent right of publicity under English law. The courts have considered (and are still considering) the matter through case law but so far their approach has been that individuals do not need a right of publicity (if they feel sufficiently strongly about an unauthorised use of their likeness, they can rely upon other legal remedies such as passing off, but the application of such remedies to celebrity publicity cases is untested as far as I know). Or, I suppose, he could potentially rely upon defamation law if the effect of including him in a game was defamatory.