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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.
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
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.
The simple solution is: if you want to make money off my likeness, compensate me.
Keller sued EA claiming that the game infringed his right of publicity
It's about the right for publicity, not the right for privacy.
IMDB publishes public information about works of entertainment. NCAA Football is a fictional representation based on works of entertainment.
IMDB is fine to publish factual items about "The Phantom Menace", but they can't publish a video game based on the same thing.
It will be interesting to see how this might affect fantasy sports games, but I suppose they differ in the simple fact that the video game creates an alternate and fictional world where these people exist, rather than simply taking the public statistics and known abilities and running math on the results.
Someone flopped a steamer in the gene pool.
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.
I think it's a mistake to conflate an endorsement with all usage of likenesses. This isn't Coca Cola placing his face in an ad for Powerade, this is a video game company making a realistic football video game.
Look, EA deserves far worse than this to happen to them. I hate them with a fiery passion, but they are actually right on this.
This is my signature. There are many like it, but this one is mine.
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.....
this is a video game company making a realistic football video game.
So... taking all the college players stats for the last 50 years, randomly assiging them jersey numbers, skin tones, eye colors, heights, and phsyiques would result in a realistic player pool from which to create a realistic football game.
Why exactly does the jersey number, physical profile and football stats all need to line up to a very particular and easily identifiable individuals?
That's not "realistic" football players, that's "real" football players. And they deserve to get paid.
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"
Horseshit. The game of football, using more or less the same "official" rules, predates the existence of the NFL. They would only have a claim over any NFL-specific rules, if even that (with the whole "can't copyright essential game elements, only expressive artwork" deal, they might not have a leg if you make a "Pro Football 2014" with every rule the same as the NFL down to a T, as long as you don't mention the NFL or use any trademarked or copyrighted material while doing so).
FC Closer
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.
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"
The players do get a cut of the money that the NCAA makes on the games. They not only get scholarships, but they get new facilities, equipment, training staff, etc. The money that comes from big name programs goes right back into big name programs. Very few athletic programs actually make a profit. Most lose money. Why? Well, the non-revenue sports such as women's volleyball, crew, soccer, etc. can get very expensive, too, and football and/or basketball subsidize those sports. In many schools, even football loses money, since it is the most expensive sport of them all. This idea that schools are raking in the dough while these poor athletes suffer being treated as gods on campus is an erroneous one. Unfortunately, it seems that the courts are really being affected by the sob stories instead of reality. The result is that we, the ordinary consumer, lose. There will be no more historical games, not just in sports, but anything involving the last century involving any real people. The dissenting opinion stated that under this ruling, the movie Forrest Gump would have been illegal. Historical sporting games are out, of course, and any current realistic amateur sporting games are also toast. It's a broadly dangerous ruling that pretty much tramples historical legal precedent on the first amendment. I hope that someone takes this appeal and somehow rights this wrong, but I doubt it. I don't think the judges are aware how broad and artistically stifling this ruling is.
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.
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
No - the simple solution is to stop making that games...
If it becomes to expensive to make the game, the resuling income from sales is simply not worth it any longer...
So - no more sport games...
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?
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By EA PAYS for the stats and the TEAM livery because the NCAA sues people HARD for not doing that. The whole issue is that the NCAA has no right to ask STUDENTS for image licensing, so EA used that illegally.
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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