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9th Circuit Court Elevates Celebrity Privacy Rights Over Video Game Portrayals
The EFF posted a biting response to yesterday's Ninth Circuit ruling that heavily weights celebrities' right to privacy, and construes that right very broadly. From the EFF summary of the case: "The plaintiff, Sam Keller, brought the case to challenge Electronic Art (EA)'s use of his likeness in its videogame NCAA Football. This game includes realistic digital avatars of thousands of college players. The game never used Keller’s name, but it included an avatar with his jersey number, basic biographical information, and statistics. Keller sued EA claiming that the game infringed his right of publicity — an offshoot of privacy law that gives a person the right to limit the public use of her name, likeness and/or identity for commercial purposes. ... Two judges on the panel found that EA’s depiction of Keller was not transformative. They reasoned that the 'use does not qualify for First Amendment protection as a matter of law because it literally recreates Keller in the very setting in which he has achieved renown.'"
The piece later notes that this reasoning "could impact an extraordinary range of protected speech."
"Two judges on the panel found that EA’s depiction of Keller was not transformative."
Ok, next patch they will transform his stats to the worst player in the game.
never thought 1984 would skew this way.
Bring back Mutant League Football and this won't be a problem.
Give me Classic Slashdot or give me death!
So, now anyone can make a video game featuring pro athletes?
That game was fun.
1st and 30
They reasoned that the 'use does not qualify for First Amendment protection as a matter of law because it literally recreates Keller in the very setting in which he has achieved renown
I guess CowboyNeal is perfectly safe then. I shudder at the prospect of this likeness.
Well, there's spam egg sausage and spam, that's not got much spam in it.
Really not sure where you get the Orwellian connection here: Co was trying to use his likeness without licensing. If they walked up to your door, took your picture, then put you in "Madden Doorbell Ringer 2013" you could sue for the same reasons. This guy wants control over how his likeness and (though somehow not in this case) name is used, whats wrong with that?
Seems to be a simple solution for game developers, throw in real stats for all of the players and then have some bot go through the stats and change things slightly, skin color, jersey number, etc. Next thing you know the NFL will be suing them for using the same rules as the "official" game though, "want to use a 120 yard field & six points per touchdown? Fork over $1 million"
More like now nobody can without bribing all the players.
How is it "bribing" a player to give them money so in return you have their permission to use their likeness?
If someone created a game that used your likeness wouldn't you think you should at least be asked permission to do so?
"There is more worth loving than we have strength to love." - Brian Jay Stanley
It's worth noting that the U.S. has no federal copyright-like "publicity right". Authors have copyright, and inventors have patents, but the Copyright & Patent Clause does not authorize any other kind of IP.
California, on the other hand, has a specific law granting celebrities exclusive use over their likenesses. Since it's a state law, in a federal court it prevails unless either it's preempted by a federal law under the preemption doctrine, or violates an incorporated-against-the-states right of the people, such as First Amendment. Here, the court held that California's law didn't violate the First Amendment.
That isn't good, but it doesn't actually mean that celebrities have some kind of inherent or national right to control their likenesses. States which disagree with this kind of outcome should make sure they repeal, or don't pass in the first place, laws like California's.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
Is to make a video game featuring exact likenesses of these 2 judges in a cort room pleasuring a giant penis with assorted comporate logos on it. "very setting in which he has achieved renown"
This isn't a matter of parody or satire; this is EA making money from the likenesses of people they never compensated. It is akin to creating a CGI representation of an athlete or celebrity and using it in a TV commercial.
Watch for laws that apply only to some people.
NSA spies on Bill Clintons emails (and likely politicians in general), on soldiers sex talks to their wives back home, on journalists phoning their newspapers, and still insists it 'never' abuses all this data its been illegally collecting, which of course is untrue.
Which of these do you think would get special protection? I think politicians will write themselves special privacy protection from the NSA and they'll think that's fine, forgetting that everyone of them was an ordinary person before they became a politician.
I also think they're really dumb, XKeyscore 'logs' searches only because General liar Alexander decided it does. I bet he has versions that don't log squat he uses for his personal politics. Because the idea that everyone in the NSA is a saint, and everyone outside is a potential terrorist, doesn't wash.
http://www.techdirt.com/articles/20130731/16193324027/nsa-boss-insists-that-analysts-cant-abuse-surveillance-systems-forgets-to-mention-that-they-have.shtml
I'm not sure how this ruling can be made. Biographical info, statistics, sports number... All facts and publicly available.
So is IMDB now illegal? It publishes similar info about actors/actresses/has-beens.
Keller sued EA claiming that the game infringed his right of publicity
It's about the right for publicity, not the right for privacy.
Actors, news anchors, sports superstars, etc. all make their living on the image broadcast in the media. You can't use an actor's likeness to sell a product unless you contract with the actor to do it. If EA wants to use his likeness, pay him for it.
Secondly, it's about time that college players start getting a cut of the billion or so amount of money that the NCAA and colleges having been raking in over the last couple of decades.
had they used his name I could understand, but jersey number? theres not a whole lot to chose from, and how different from some real player must the stats be to not infringe?
This is about EA profiting from the likeness of unpaid, uncompensated NCAA players, something that EA and the NCAA have been doing for a long time. Just watch Crack Baby Basketball episode of South Park for the satire of this. I don't think this has anything to do with free speech so much as blatantly profiting from someone's likeness without compensating them.
You use the man because he's famous at a sport, pay the man because he's famous at a sport.
It's not really any different from trademarks. You can blabber about Harry Potter all day. You just can't write a story then sell it without permission.
Football games are not public events in the same sense as a fight in a street is.
Nothing to see here, move along.
(-1: Post disagrees with my already-settled worldview) is not a valid mod option.
Doesn't the NCAA have all athletes sign away rights to their own likenesses? Does that really not cover this "right of publicity"?
http://www.bloomberg.com/news/2013-06-19/ncaa-6-4-billion-threatened-by-suit-over-player-likeness.html
Also, these judges clearly do not understand "transformative use" or they do not understand the very nature of video games. While the game has recreated his look, jersey number, and copy/pastad his stats it is not done to "recreate reality" as evidenced by the fact that I, as a player, can make this avatar run plays that he never has run nor ever would run. I could make this avatar do all sorts of crazy shit in a video that he never has nor will ever do in real life. Actions that the video game player takes or could take are also part of the video game itself.
The right of publicity is essentially the right to control commercial use of one's name, likeness, and reputation. It is the right not to be exploited for sensationalist profit. Is the right to control what words people try to put in your mouth -- what people try to claim that you endorse or support. This is part right now that people are railing against -- the notion that profit trumps speech.
However, there's another side to the publicity coin, and that's the right to be left alone. The right not to have one's likeness and life drug through the public eye without some kind of public merit. It's based on the notion that we have a natural right as to how and whether aspects of our lives are communicated to the public. It's very closely related to the doctrines behind prohibiting slander and libel. That side is very much about privacy.
The general causes for action under the notion of right of publicity are:
1) Intrusion upon physical solitude.
2) Public disclosure of private facts.
3) Depiction in a false light.
4) Appropriation of name and likeness.
While this case is about #4, #1-3 are essential privacy rights, and while the EFF is not arguing against them, I worry that weakening appropriation weakens false light, disclosure, and intrusion torts.
As to the case at hand, in general, commercial speech gets the lowest protection by the First Amendment. Privacy trumps profitable speech, but much like defamation law, the protections weaken the more political and public your life is and the closer the speech comes to political or academic speech, until it comes to the point that politicians essentially have no right of publicity, which is frankly the way it should be.
If it's for-profit but free, you're not the customer -- you're the product (e.g., the Slashdot Beta's "audience").
I like to support the EFF, but I'm firmly in the camp of the athlete in this. Basically, collegiate athletes are unpaid, and the schools make tons of money off of their celebrity status. Then, EA swoops in and makes a contract with the private governing organization (NCAA) and gets to make even more money off of it. It's a guaranteed revenue stream as each year they release a new title with simply updated bitmaps and adjustments to values in the stats database. The NCAA gets a big fat chunk of profit (which they don't distribute). The schools also get big fat chunks of the profit (for using the school's trademarked logos and identities) but we somehow pretend that the athletes are amateurs and shouldn't be compensated beyond their education (which is little more than a rubber-stamped diploma).
I think it's atrocious, and I'm hoping this lawsuit shakes up the system substantially. The NCAA are the ones most at risk here in the fallout. EA won't be hit nearly as hard since this isn't their only major franchise, and the schools will still be able to license they way they always have.
Disclaimer - I'm a fan of collegiate football.
I'm out of my mind right now, but feel free to leave a message.....
I wonder what would happen if you made a video game about a courtroom and made the judges look like judges in real life. And then have those judges make legal decisions they normally wouldn't make. Even show some taking bribes to throw cases. As long as they're in the setting they've achieved renown in, all's good. Right?
Care killed the cat, but satisfaction brought it back.
It's sad when an episode of South Park makes this subject more clear.
If the NCAA endorsed and has a licensing deal with EA then all the NCAA has to do is change the contract with the players: You agree that EA may use you likeness and personal statistics for the purposes of creating video game characters.
Boom: you want to play NCAA basketball, you have to agree to this. Don't agree? don't play.
Article X: The powers not delegated... by the Constitution...are reserved...to the people
The summary refers to "his jersey number" and "her name"
They reasoned that the “use does not qualify for First Amendment protection as a matter of law because it literally recreates Keller in the very setting in which he has achieved renown.”
So if live football games are like their video recreations, how do I control the player with the ball? This will really help me with my fantasy league next year.
How is it "bribing" a player to give them money so in return you have their permission to use their likeness?
That depends on whether accepting such a "bribe" would cost a student athlete his amateur status and thus his eligibility.
the whole "can't copyright essential game elements, only expressive artwork" deal
Tell that to Xio Software, who got successfully sued by The Tetris Company for making a block-stacking game that uses pieces made of four square blocks.
What if the reader doesn't think that using fictional characters should result in someone getting punished?
Until 51 percent of readers agree with this hypothetical reader and take this agreement to the voting booth, copyright continues to exist as the statius quo.
Don't they have to license the players "likeness" for NFL-based football video games? And doesn't the NFL make exclusive deals for video games? Isn't this the reason there aren't competing games using real players?
Public Figures do not have the same rights to privacy as everyone else.
If they did, tabloids wouldn't be allowed to exist.
Another example of how the system favours the media industry and is harsh against the computer industry and its workers.
For those of you siding with the judges, how do you answer these questions...
What if someone wanted to write a book about the NCAA, and they wanted to include the player in question as a character in the book, and they wanted to portray everything in the book as historically accurate as possible; should they be barred from doing so without the player's permission? What if instead of it being a normal book they wanted it to be a choose-your-own-adventure style book? Or what if they wanted to make a movie about the NCAA, shot with actors, but done in a documentary style, and with an actor chosen because of a strong resemblance to the player in question? What if this movie was set up to have multiple endings that a viewer could choose between, like the movie "Clue"? What if instead of just multiple endings, a viewer could choose the direction of the story multiple times throughout the movie? What if instead of being a movie shot with actors it was an animated movie? What if it was done with CG? What if this "movie" was designed to be played back on a game console and the viewer controlled the "story" with a game controller?
The same logic that the judges used can be used to disallow all of the above. Maybe you don't care, because the individual is supposedly a struggling student athlete, and is somehow deserving of money. But what if the person in question was a politician, or some other influential person? Under this ruling, you're creating a situation where anyone can dictate how the public can present them in the historical record. I mean, what if an NCAA player says, "You can use my likeness in the game, but only if you give me stats that are way better than I have in real life", or what if a politician says, "You can make a movie about my life, but only if you portray everything I've done with my chosen spin on it"?
Likeness rights, outside of copyright, should only matter if a third party is trying to use someone else's likeness is such a way that a reasonable person might believe that it is the real person performing the activity in question, and not just a recreation of their likeness.
They're using a jersey number assigned by the NCAA that will be reused for other players later, and a set of stats collected by the NCAA.
This won't last long, NCAA will just amend their terms so that all athletes must give up likeness rights to compete.
paintball
It seems there should be a line between one's persona as an individual versus a member of a team/group. For example, one could make a game with characters from various sports teams in said sports roles, but you couldn't use their likeness for non-sports games.
I also fail to see how stats are owned by the player as opposed to the league.
In the end, we'll probably see game character vaguely similar to players, but different enough to skirt lawsuits, similar to using Deagle instead of "Desert Eagle" etc.
This would all be far more interesting if he had a twin.
I reserve the write to mangle english.
It's about being able to ask money for appearing somewhere. The guy doesn't care how good or how bad he looks in the game, he just wants money for it. The big question is if his NCAA contract that licensed off the details to EA includes the use of his physical likeness or nor. Also, the contract between his club and the NCAA and his contract with the club are involved here. If any of these fail to include the licensing of his likeness, some party will be left to pay a lot of money.
I was promised a flying car. Where is my flying car?
http://methamphetam.in
I hate EA as much as anyone else here, but I think the very nature of being in a video game is transformative. From a commercial perspective, EA should not qualiy for fair use since they basically copy the looks of entire teams of people (the entire game would have little appeal otherwise)
But I think it is extreme overreach to say that privacy is invaded by a digital interpretation of someone or something. If we all jumped the gun on this kind of thing, that would make games like GTA/carmageddeon impossible because every box with 4 wheel would infringe on then vehicle they are parodying. Hell every use of the DMC-12 DELOREAN or it's likeness would violate Universal Studios rights to Back To The Future.
On the other hand, a persons personal privacy should be protected. Making any "punch (name)" flash on newgrounds should be removed for the same reason.
Am I not making enough nonsense here? No privacy is invaded by creating the likeness of someone. Commercial or otherwise. Go look of that story about the asshole who was selling body pillows of cosplayers and ask the cosplayers if they would have consented had they known that was going to happen.
We really have a problem, legally, defining what is okay to do with digital data that forms a likeness of that individual. Celebrity or not.
Keller should quit whining and be glad for the free publicity. The 9th got this decision wrong, since this falls somewhere between Fair Use and no personally identifiable information. Of course, I agree with some of the posters that EA should totally nerf that character so that nobody will want to play him.
From the page you linked: "The court found that [...] The style, design, shape and movement of the puzzle pieces were not inextricably connected to the ideas, rules and functioning of the game and therefore wereprotectible elements." From the opinion itself: "Xio was also free to design a puzzle game using pieces of different shapes instead of using the same seven pieces used in Tetris." This made it pretty clear to me that the exact shapes of the Tetriminos, not just their colors and textures, are copyrighted. And even if the shapes themselves weren't copyrighted, standardizing the colors is like standardizing green means go and red means stop.
I thought this was about Celebrity Apprentice. LOL!
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