Hot Sauce Dismissed in New York Court

Champion v. Take-Two Interactive Software, Inc.,
Supreme Court of New York, New York County
Decided May 10, 2019
Case No. 158429/2018

Celebrity entertainer Phillip “Hot Sauce/Hot Sizzles” Champion sued video game developer Take-Two, alleging a violation of his right to privacy for Take-Two’s use of his name and likeness in the basketball videogame NBA 2K18. The Court eventually dismissed the lawsuit, but in doing so considered interesting questions regarding New York’s publicity statute and its application to the eSports and video game industries.

New York’s publicity laws provide criminal charges and civil liability for the use of a person’s name, portrait, or picture when used for advertising or trade purposes without prior written permission. This right can extend to any likeness that has a “close and purposeful resemblance to reality.” New York courts have previously held that video game avatars can satisfy this element.

Take-Two moved to dismiss Champion’s lawsuit, making three arguments:

  • First, that the name and image of the “Hot Sizzles” avatar in NBA 2K18 did not sufficiently resemble Plaintiff such that the use was not actionable under New York Civil Rights Law 50 and 51;
  • Second, that the use of the “Hot Sizzles” avatar in NBA 2K18 was not actionable because it fell within the incidental use exception; and
  • Lastly, that NBA 2K18 is protected speech and expression such that it did not fall under the definitions of “advertising or trade” as required by New York publicity laws.

In this case, unlike the resemblances in the Lohan and Gravano Grand Theft Auto cases, the “Hot Sizzles” avatar in NBA 2K18 bore no resemblance to Champion. This did not bode well for Champion’s case: even in the Lohan and Gravano cases, where the avatars were much more similar to the real individuals, the uses of those avatars were still not actionable as a matter of law. Champion asserted that the use of his name further increased the resemblance but, for this to be true, his actual name would have to be used in the video game. Nicknames do not qualify for this same level of protection. Stage and theatrical names may qualify for protection, but the Court strangely solves this problem as well.

The Court, using sources such as Wikipedia and IMDB, concluded that Champion was not commonly known as “Hot Sizzle” – rather, Champion was more often known by the nickname “Hot Sauce.” As such, at most, “Hot Sizzle” was a secondary nickname. This led the Court to further conclude that such a use of “Hot Sizzle” was definitively incidental in nature.  Based on these findings, the Court dismissed Champion’s complaint.

This case provided an interesting dive into the development of the right of privacy, especially in video games. It will be interesting to see how this right develops as games become increasingly complex, and the ability to add a multitude of new characters increases the probability that such characters may infringe on a right of privacy.