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

Roger Clemen's baseball, circa 1992ish

[Joe the Lesser]

If anyone played this NES game (I'm pretty sure it was endorsed by clemens, or some other good pitcher') It only had his permission, so they changed all the names of every single major league player slightly, which made it quite hilarious to figure out who was who.

(Now pitching, Tim Glavoon).

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.