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Lenwood Hamilton v. Lester Speight, et al.

Paid petition · United States Court of Appeals for the Third Circuit, No. 19-3495 · judgment September 17, 2020

Certiorari denied · June 21, 2021
Pre-decision estimate: 12% cert probability (95% interval 7%–21%)

Before the decision, about 3× the 4.1% base rate. The model weighted this up for counsel with five or more prior petitions here, a Third Circuit decision below, and a circuit split argued in the petition.

Questions presented

Epic Games used Lenwood “Hard Rock” Hamilton’s face and voice in its billion-dollar Gears of War video game franchise without his permission. The Third Circuit used a version of the Supreme Court of California’s “transformative use test” to determine that Epic Games had a First Amendment right to use Hamilton’s image and voice without his permission. The questions presented are:

  1. whether the First Amendment right to free speech protects using a person’s actual likeness without permission when weighed against that person’s property, privacy, and dignity rights against unauthorized use of his likeness, and

  2. whether the First Amendment right to free speech protects a video game maker’s unauthorized use of a person’s face and voice in a game?

Counsel of record

For petitioner
Tillman J. Breckenridge
Stris & Maher LLP

For respondent
Elizabeth A. McNamara
Davis Wright Tremaine LLP

Case

Subject area
First Amendment (estimated from the questions presented, in the Supreme Court Database’s categories)

Conference history
Distributed for 2 conferences

Amicus briefs
1 cert-stage

Order
Order list, June 21, 2021 · Certiorari denied

Proceedings

  1. Jun 21 2021
    Petition DENIED.
  2. Jun 01 2021
    DISTRIBUTED for Conference of 6/17/2021.
  3. May 28 2021
    Reply of petitioner Lenwood Hamilton filed. (Distributed)
  4. May 17 2021
    Brief of respondents Lester Speight; Microsoft, Inc.; Microsoft Studios; The Coalition in opposition filed.
  5. Mar 24 2021
    Motion to extend the time to file a response is granted and the time is extended to and including May 17, 2021, for all respondents. See Rule 30.1.
  6. Mar 23 2021
    Motion to extend the time to file a response from April 16, 2021 to May 16, 2021, submitted to The Clerk.
  7. Mar 17 2021
    Response Requested. (Due April 16, 2021)
  8. Mar 10 2021
    DISTRIBUTED for Conference of 3/26/2021.
  9. Mar 02 2021
    Brief amicus curiae of Atlantic Legal Foundation filed.
  10. Feb 26 2021
    Waiver of right of respondents Lester Speight; Microsoft, Inc.; Microsoft Studios; The Coalition to respond filed.
  11. Feb 25 2021
    Waiver of right of respondent Epic Games to respond filed.
  12. Feb 12 2021
    Petition for a writ of certiorari filed. (Response due March 18, 2021)