On March 2, 2019, Lenwood “Hard Rock” Hamilton filed a motion in opposition to Microsoft’s summary judgment motion in video game lawsuit. As we have previously covered, Hamilton sued Microsoft Studios Inc. and Epic Games Inc. claiming that a character/avatar in the popular video game Gears of War, Augustus “Cole Train” Cole, was based on, and copied, Hamilton. According to Hamilton, “[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.” Hamilton claimed that the avatar 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.
Microsoft later moved for summary judgement argued that placing the avatar in a sci-fi setting, fighting aliens was transformative enough to make their avatar distinct from Hamilton. In response, Hamilton argued that the avatar shares so many of his characteristics that summary judgement is inappropriate and the court must let a jury decide whether or not Microsoft Studios Inc. and Epic Games Inc. used Hamilton’s likeness without permission.
According to Hamilton, he is not claiming that the avatar “only shares his voice[,] [o]r his eyebrows, [o]r his race[,] [o]r his skin tone[,] but [the avatar] represents a wholesale lifting of Hamilton’s combination of traits which makes Hamilton a unique individual” and icon. In response to Microsoft’s arguments, Hamilton claims, “[a]ll of the other attributes of the [avatar], his job as a soldier, his soldier’s uniform, and his missions killing aliens, are a result of the topic of the game as a whole and is true of all of the other playable characters in the game.” According to Hamilton, these small in-game variations are not enough to show that Microsoft Studios Inc. and Epic Games Inc. did not base the avatar on Hamilton without permission. “Whether this is all just one big coincidence,” Hamilton argued, “is a question of fact that should go to the jury.”