United States District Court, E.D. Pennsylvania
B. BRODY, J.
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. 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.
move for summary judgment on the grounds that the First
Amendment right to free expression bars each of
Hamilton’s claims. 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.
Lenwood Hamilton, Soul City Wrestling, and the Hard Rock
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
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
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.
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. In accordance
with Hamilton’s family-friendly philosophy, Hamilton
informed Speight that he was not interested in taking part in
a violent video game.
The Gears of War Video Game Series and the Cole
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. 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.
the Gears of War series, Defendant Lester Speight,
Hamilton’s former wrestling mate, provided the voice
for the Cole character. 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.
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. The Cole character does not change in
appearance from Gears of War 1 and Gears of War
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. 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
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
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.
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,
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).
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.
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
The Right of Publicity, the First Amendment, and the