I've got a short essay up over at Gamasutra about the right of publicity in video games. The fundamental question is this -- if you create a game (or virtual world) and you want to include in that setting an indentifiable individual, do you need to pay a licensing fee to that person or the heir of that person?
If games are like books, and not a second class medium, the answer should be "no." If I write a book, and a character in the book has a chance encounter with William Shatner or Harrison Ford, the artistic use of that celebrity's identity in a fictional content should be protected by the First Amendment. In other word, Shatner or Ford should not have a right to prohibit the creation of literature that makes reference to them. If the reference is misleading, or false, or defamatory, of course, there would be a legal problem -- but if not, the use of the identity in a work of art should be fine.
So why should there be a difference result for video games? In my opinion, games should have the same stature as other forms of artistic expression. But as William Ford and Raizel Liebler have explained recently, games have historially been of treated as a second-class medium when it comes to the right of publicity.
Now that we have EMA v. Brown, I think it's past time to change that rule. Hopefully the many courts considering this issue in the next few years will get this question right and protect the creative freedoms of game designers. The case I talk about in the Gamasutra post is Hart v. EA. The amicus brief in the case can be found here at Harvard's Berkman Center, with more commentary on the issues raised.