So Are Games Coffee Mugs or What? Games and the Right of Publicity Revisited, 19 UIC Rev. Intell. Prop. L. 178 (2020)

In Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011), the U.S. Supreme Court held that video games are equivalent to other forms of media for First Amendment purposes. This decision should have put video games in the same category as other forms of non-commercial, expressive speech for purposes of the right of publicity. This article reviews the post-Brown decisions to determine the current place of video games within the caselaw. The result of that review is that games are still in a transitional stage, no longer merchandise as a matter of doctrine, but not yet receiving the same treatment as books, films, and other forms of traditional media.

The tension between doctrine and case outcomes cannot last, but the right cases have not yet come along to force courts to confront the discrepancy.