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Video Game Likeness Rights: Keller and Lohan Cases

Jurisdiction: United States; historical case commentary. Reviewed 27 October 2026.

Video games can reproduce a recognisable person without using their name. US right-of-publicity and privacy rules vary by state; they are distinct from copyright and do not divide neatly into one rule for celebrities and another for everyone else.

Keller and college sports

In the Ninth Circuit’s 2013 Keller decision, Electronic Arts did not establish its asserted First Amendment transformative-use defence to the California right-of-publicity claim. The appeal concerned denial of an anti-SLAPP motion, not a complete final damages judgment. The recreation of the player in the setting where he was known was central to that analysis.

Lohan and recognisability

The New York Court of Appeals held in Lohan v Take-Two (2018) that a computer-generated image could constitute a portrait under the relevant privacy statute. It nevertheless affirmed dismissal because the images were not recognisable as Lohan. A broad resemblance to a type of person is different from an identifiable portrayal.

The return of college football games

The original article asked how EA could return to college football games. That is now a historical question: EA announced College Football 25 for July 2024. Rights clearances and athlete arrangements must be assessed on their own terms; the older litigation does not establish today’s rules for every athlete or game.

A practical distinction

A depiction can involve copyright, publicity rights, privacy, advertising and contracts in different ways. There is no universal US rule that a non-celebrity must prove emotional harm before any claim can succeed. Start with the state law and the specific cause of action.

American football players with a headline about likeness rights in video games

Sources and further reading

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