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Hamilton v. Speight

United States District Court, E.D. Pennsylvania

September 26, 2019

LESTER SPEIGHT, et al., Defendants.


          ANITA B. BRODY, J.

         Plaintiff Lenwood Hamilton (“Hamilton”) is a former professional wrestler and football player. In the 1990s, Hamilton created and performed as the character Hard Rock Hamilton with Soul City Wrestling, a now-defunct, family-friendly professional wrestling organization that Hamilton created. Hamilton alleges that Defendants Microsoft, Inc., Microsoft Studios, The Coalition, Epic Games, Inc., and Lester Speight (collectively, “Defendants”) misappropriated the Hard Rock Hamilton character when they created Augustus Cole (“the Cole character”), also referred to in-game as Cole Train, for the popular Gears of War video game series.[1] In the Gears of War series, the Cole character is not a wrestler but a fictional soldier who engages in highly stylized cartoon violence against formerly subterranean reptilian humanoids on a fictional Earthlike planet, Sera.

         Defendants move for summary judgment on the grounds that the First Amendment right to free expression bars each of Hamilton’s claims.[2] Even taking the facts in the light most favorable to Hamilton for the purposes of summary judgment, the First Amendment bars Hamilton’s claims. Defendants’ right to free expression outweighs Hamilton’s right of publicity in this case because the Cole character is a transformative use of the Hard Rock Hamilton character. For this reason, I will grant Defendants’ motion for summary judgment.[3]

         I. BACKGROUND[4]

         1. Lenwood Hamilton, Soul City Wrestling, and the Hard Rock Hamilton Persona

         In the 1990s, Plaintiff Lenwood Hamilton (“Plaintiff” or “Hamilton”) worked as a professional wrestler. As a wrestler, Hamilton was known as Hard Rock Hamilton. Hamilton’s Hard Rock Hamilton persona donned a unique look with a distinctive approach to costume, dress, and appearance.[5]

         Hamilton performed as Hard Rock Hamilton in Hamilton’s own local professional wrestling organization, called Soul City Wrestling. Soul City Wrestling was designed to be family-friendly professional wrestling entertainment. Beginning in 1997, Soul City Wrestling promoted and held professional wrestling bouts at numerous venues in and around Philadelphia and elsewhere. Hard Rock Hamilton was often featured as the main event at Soul City Wrestling and was the Soul City Heavyweight Champion of the World. Hamilton promoted Soul City Wrestling in local broadcast and newspaper media, including local television news, the Philadelphia Inquirer, Philadelphia Sunday Sun, Philadelphia Daily News, and Norristown Times Herald. While developing Soul City Wrestling, Hamilton also worked as a motivational speaker in Philadelphia.

         Before his work as a professional wrestler, Hamilton played football at NCAA Division I football programs and went on to become a professional football player. Hamilton played one game for the Philadelphia Eagles during the strike-affected 1987 NFL football season.

         In 1998, Defendant Lester Speight (“Speight”) joined Soul City Wrestling, where he donned the wrestling persona Rasta the Voodoo Mon. Speight knew of Hamilton and his Hard Rock Hamilton persona. On July 25, 1998, Soul City Wrestling sponsored a wrestling event at Viking Hall in Philadelphia, which featured Hamilton as Hard Rock Hamilton and Speight in his “Rasta” persona. During the after-party for that event, Speight discussed plans for a violent shoot ’em up video game with Hamilton.[6] In accordance with Hamilton’s family-friendly philosophy, Hamilton informed Speight that he was not interested in taking part in a violent video game.

         2. The Gears of War Video Game Series and the Cole Character

         Gears of War is an extremely violent cartoon-style fantasy video game series. The series takes place on an Earth-like planet called Sera that is populated by a wide variety of post-apocalyptic, crumbling structures. In the game, highly stylized, outlandish, cartoonish human characters are in violent conflict on Sera with a race of exotic reptilian humanoids known as the Locust Horde.[7] The Locust Horde reptilian humanoids are rumored in the in-game narrative to have been born out of a research accident related to Imulsion, a fictional energy source. However, the Locust Horde no longer inhabits its former subterranean environment after being driven above-ground by other subterranean reptilian creatures. The series primarily follows a military unit called Delta Squad, which consists of the fictional characters Marcus Fenix, Dominic Santiago, Damon Baird, and the Cole character. The reptilian humanoid members of the Locust Horde engage in extremely violent conflict with the Delta Squad and the rest of the planet’s surface-dwellers; their conflicts center on fantastical, cartoonish firearms controlled by the players.

         Throughout the Gears of War series, Defendant Lester Speight, Hamilton’s former wrestling mate, provided the voice for the Cole character.[8] In the game, the Cole character is a large, muscular, African American male who is a former professional athlete who played the fictional game thrashball, a highly fantastical and fictionalized sport that loosely imitates American football in some ways, although the characters do not play thrashball. Speight had input into how the Cole character looked and had influence over the character. For example, Speight decided which voice to use for Augustus Cole. He also suggested that the game designers make the Cole character’s arms bigger.

         Cole and Hamilton share broadly similar faces, hair styles, races, skin tones, and large, muscular body builds. Cole’s and Hamilton’s voices also sound similar. The default Cole character in Gears of War is adorned in military gear.[9] The Cole character does not change in appearance from Gears of War 1 and Gears of War 2.

         However, in Gears of War 3, the third game in the series, players can obtain alternative “skins, ” or appearances, for the characters, including the Cole character. In Gears of War 3, for instance, players can utilize a skin or outfit for Cole known as Superstar Cole. This skin is a nonmilitary or civilian look for Cole.[10] Superstar Cole wears a fedora, sunglasses, sweatbands or compression bandages, a watch, and a chain necklace with a replica of a Gears of War weapon hanging from it. There is also a skin for Thrashball Cole, which emphasizes Cole’s background as a former thrashball player.[11]

         The Cole character also has a distinctive in-game persona. Plaintiff Hamilton testified that the Cole character’s personality is “totally the opposite” of Hamilton’s own personality and the personality of the Hard Rock Hamilton wrestling character. Specifically, Hamilton stated that, although the Cole character shares his likeness, the Cole character “is ignorant, he’s boisterous and he shoots people, he cusses people out, that’s not me. What [the Cole character is] portraying . . . it’s totally against what I believe in.” Deposition of Plaintiff Lenwood Hamilton at 174:16-20. Hamilton went on to assert that “for [Defendants] to take my likeness and . . . portray me as a person that shoots people, curses their mom out, and cusses like [the Cole character] does, that’s not portraying Hard Rock Hamilton. That ain’t me. I was highly mad, and still am. That ain’t me. . . . [T]hat’s not my temper. That’s not my attitude. . . . But as far as being vulgar, disrespectful to women, disrespectful to anything. [The Cole character] stands for totally the opposite of what I was trying to do . . . .” Id. at 231:24-232:10.

         It is not possible at any point in the Gears of War series to use the Cole character-or any other character-to engage in professional wrestling. At no point in any of the Gears of War games is the Cole character identified as a wrestler, former wrestler, or aspiring wrestler. Id. There is similarly no reference in the games to the Hard Rock Hamilton name or any other biographical information about Hard Rock Hamilton.


         Summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the governing law . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “genuine” if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. Id. In ruling on a motion for summary judgment, the court must draw all inferences from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         The moving party “always bears the initial responsibility of informing the district court of the basis for its motion . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party has met its initial burden, the nonmoving party must then “make a showing sufficient to establish the existence of [every] element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322. Both parties must support their factual positions by: “(A) citing to particular parts of materials in the record . . .; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

         The inquiry at summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.


         Defendants move for summary judgment on Hamilton’s claims. Defendants argue, among other things, that each of Hamilton’s claims is barred by the First Amendment. Specifically, Defendants contend that their rights to expressive speech under the First Amendment outweigh Hamilton’s right to publicity, if any, because the Cole character is a “transformative use” of the Hard Rock Hamilton character. See generally Hart v. Elec. Arts, Inc., 717 F.3d 141, 166 (3d Cir. 2013) (adopting and applying the Transformative Use Test in relation to First Amendment protection against right of publicity cases). I agree and I will grant Defendants’ motion on this ground.

         A. The Right of Publicity, the First Amendment, and the ...

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