Licensing Likenesses For Sports Games

mojotooth writes "According to an article on The Register (via Gamesindustry.biz), German courts have handed down a ruling that the EA Sports game FIFA World Cup 2002 cannot be sold in Germany, because it features the name and likeness of Bundesleague goalkeeper Oliver Kahn without his express permission. The court has not yet handed down damages. This could be troubling to the sports gaming industry - we might be forced back into the dark ages of sports gaming, where team names and jersey numbers could be used, but not the names or likenesses of the players."

Comments

Easy solution

[lightspawn]

Instead of the real sports people, just use open source "movers and shakers" (they shake when they move!).

But seriously, do you really have to have the likeness of NBA players to enjoy a basketball arcade game? It just increases the barrier of entry for the little guy. The back yard (or whatever it's called) sports series became successful without any licensed playas, didn't it?

Tony Hawk may actually care about the games and spend ages with the developers explaining stuff but most sportonalities don't. Did Jeremy McGrath even played that horrible Dreamcast game after putting his name on it? No, or he would never have agreed to peddle a game where the motorcycles controlled - and sounded - like bees.

Hey, raffle off a chance to get your likeness in the game. Put yourselves and your girlfriends in the game. Work out a deal with a toy company that needs brand recognition in time for the xmas rush. Just stop this 'you must be at least this $$$ rich to create even the suckiest sports game' madness.

Come on, didn't you have fun playing that hockey game on the NES? Did Activision's Atari 2600 Tennis game suck because you were 'black guy' or 'white guy' instead of 16 professionals? Was Atari's Pele's soccer better because of the name? All the soccer players in that title were three rectangles, so I don't think any of them was any more or less Pele than the others.

OK, I'm all rambled out now.

They shoot, he scores ... TOOOOOOOOOORT!

[watchful.babbler]

I imagine there's more to this story than is told; in America, the "right to publicity" is fairly well-established in a large number of states (and is mentioned in the Second Restatement of Torts as "appropriation of name or likeness"). For example, in a case involving an Oklahoma statute protecting publicity rights, the 10th Circuit defined those rights under the statute as "a form of property protection that allows people to profit from the full commercial value of their identities." Cardtoons L.C. v. Major League Baseball Players' Association, 95 F.3d 959 (10th Cir., 1997)

Furthermore, although Germany has only a limited statutory right of publicity insofar as photographs are concerned, it has at times based a tentative right to publicity on Constitutional grounds, and is known for a more expansive definition of "commercial activity" than U.S. courts (for example, where news reportage would be prima facie protected in the States, it is treated as a commercial activity in Germany).

I find it surprising and unlikely that EA would attempt to sell a video game using the likeness of a sports star without some kind of licensing deal, since otherwise they could be found liable in a wide range of venues. Either somebody really screwed up (and, hey, it could have been in-house counsel!), or else there's something more to this dispute.