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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.
Isn't that Animal Farm?
I swear to God...I swear to God! That is NOT how you treat your human!
Probably because you're quoting another Orwell work, animal farm.
Non impediti ratione cogitationus.
yeah and this dude is.. .. a publicly playing dude and the stats are about his public plays, no? I mean, they probably took 'em out of some stats magazine or some shit like that.
world was created 5 seconds before this post as it is.
No, now no one can make a video game featuring pro athletes, without paying each athlete.
"First they came for the slanderers and i said nothing."
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.
You would simply go to the players' union and ask for permission. All the players in the union will have pre-agreed to allow the union to bargain for the palyers as a group. That's what unions do.
To be fair, I don't recall Animal Farm specifying in what year it took place. Maybe it also took place in the year 1984, albeit in an alternative dimension where animals talked and Oceana wasn't at war with Eastasia.
Tic-Tac-Toe, Global Thermonuclear War, and relationships all have the same winning move.
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.
What union? This is the NCAA, i.e. they're in college and aren't employed to play.
For professional sports, sure, but for the NCAA there are strict rules forbidding the players from receiving payments. Licensing their likeness may fall outside the bounds of what's restricted, so it may be possible for them to do so, but there aren't any unions that speak for all of the players. The closest thing is the NCAA itself, but as far as I'm aware (and I may be very mistaken, since I'm disinterested in all of the football fanaticism I see around me in America), the players don't sign away their rights to the NCAA in order to play for their school's team.
A Jersey # and some playing stats, licensed from the NCAA. It's not like they secretly motion captured him with his girlfriend and 'hot chocolated' them.
John McAfee 'It was like that time I hired that Bangkok prostitute; to do my taxes, while I fucked my accountant'
Oceania has always been at war with Eastasia.
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.
Unions (theoretically) exist to protect the employees against the management through collective bargaining.
Unfortunately in the case of collegiate football, NCAA is the management, and the Universities are the staffing agencies, EA is a 3rd party buying the product, and no-one is representing the interests of the players.
I'm out of my mind right now, but feel free to leave a message.....
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.
Why is this a problem? You are using their likeness to generate income without their consent or compensation.
Only the State obtains its revenue by coercion. - Murray Rothbard
Isn't that Animal Farm
To be fair, I don't recall Animal Farm specifying in what year it took place. Maybe it also took place in the year 1984, albeit in an alternative dimension where animals talked and Oceana wasn't at war with Eastasia.
Pretty sure he meant the quote, "Some are more equal than others," was from Animal Farm, not the year that Animal Farm took place.
Exactly the point and why their is a lawsuit against both EA and the NCAA.
I'm out of my mind right now, but feel free to leave a message.....
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