“Hard Rock” Hamilton Can’t add Claim in Video Game Suit

On January 10, 2019, former former football player, professional wrestler, and motivational speaker, Lenwood “Hard Rock” Hamilton, was allowed to drop, but not add, allegations in his suit against Microsoft Studios Inc. and Epic Games Inc.

Back in 2005, Hamilton claimed that he provided photos and voice recordings for a character who would later become Augustus “Cole Train” Cole in the video game Gears of War. In 2017, in a lawsuit against Microsoft Studios Inc., Hamilton claimed that the character, voiced by actor Lester Speight, was actually based on Hamilton. In his complaint, Hamilton alleged that “[t]he similarities of the avatar ‘Cole Train’ and [Hamilton] include that both are black (and ‘Cole Train’ is the only black avatar in the Gears of War series), they both played professional football (although in Gears of War the game is called ‘thrashball’), Cole Train’s number is 83 (same year that Hamilton played for the Philadelphia Eagles 1983), the derby hat, wristbands, a front gold tooth, and a striking resemblance of both physiognomy and body build.”

According to Hamilton, he had discussions about playing the character, but he ended up turning down an offer over concerns that the game would be too violent. Hamilton claimed that the character was developed in his likeness and voice, but credited to Lester Speight, and used in the Gears of War franchise without his knowledge until 2015, when friend of his son pointed out the similarity.

Most recently, U.S. District Judge Anita Brody allowed Hamilton to withdraw his claims that Microsoft Studios Inc. and Epic Games Inc. violated the Lanham Act, but denied his request to add a claim for intentional nondisclosure under Pennsylvania law. Hamilton’s claims include unauthorized use of likeness, unjust enrichment, misappropriation of publicity, and invasion of privacy.

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