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."

Comments

Solution to the problem

[Anonymous Coward]

"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.

Re:Solution to the problem

[Schmorgluck]

should of

You fail.

Re:Solution to the problem

[bitt3n]

"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.

this is a great opportunity to employ the small penis rule. slightly change the likenesses of the players from reality, and in the stats, just list their penis as 2-inches long.

Re:Solution to the problem

[dyingtolive]

You guys are adorable. Now go back to reddit.

Re:Solution to the problem

[hairyfeet]

I just don't see why so many are the EFF on this one when it means supporting EA a company notorious for screwing EVERYBODY from the employees on up.

Personally I'm all for this rule because i'm hoping it will open debates i think are long due, which is why are college athletes not allowed to get paid for what they do but everyone can make money off of them just like in TFA? Most of these kids will NEVER make it to the majors and if they blow out a knee on their last year their life usually ends up shit, meanwhile everybody else, the school, the groups in charge of licensing like the NCAA, even game companies like EA THEY can all make money but the kid can't? I'm sorry but that is severely fucked up.

And let me just head those that will say "but they get paid with an education" off at the pass because I went to a "football school" and I can say pretty much all a LOT of those players are learning is how to play a better game, we've seen enough examples of players that couldn't even read the diploma they were handed to know that is a bunch off bull. So just pay the kids alright? Put it in a trust for the guy or whatever and that way if something bad happens to them and they can't play at least they'll have some money to start over, but it just ain't right that these kids are not allowed to make shit while everybody else cashes checks based on their work, its not right, its not fair, and if this ruling kills the blanket licenses the NCAA is allowed to SELL based on these kids without giving them shit in return? Then I'm damned glad the judges ruled this way, I just don't get why the EFF are for a status quo that enriches these large corps while not giving a cent to the kids whose labor is being sold.

Re:some are more equal than others

[GodfatherofSoul]

Isn't that Animal Farm?

Re: some are more equal than others

[RyuuzakiTetsuya]

Probably because you're quoting another Orwell work, animal farm.

Re:Does this apply to all athletes?

[phantomfive]

No, now no one can make a video game featuring pro athletes, without paying each athlete.

Not bribing

[SuperKendall]

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?

Re:Not bribing

[king neckbeard]

If I was awesome in the game, I would be happy that I'm being portrayed as awesome to the world. If I was portrayed in a neutral light, I wouldn't have a reason to care all that much. If I was potrayed as lame, then it would obviously be some kind of parody or other transformation, so while I may be unhappy, I wouldn't have any just complaint.

Re:Not bribing

[CanHasDIY]

If I was awesome in the game, I would be happy that I'm being portrayed as awesome to the world. If I was portrayed in a neutral light, I wouldn't have a reason to care all that much. If I was potrayed as lame, then it would obviously be some kind of parody or other transformation, so while I may be unhappy, I wouldn't have any just complaint.

Easy for some nobody, no-name neckbeard to say.

However, if your fiscal security was based on your own likeness, you'd probably be singing a different tune.

Re:Not bribing

[king neckbeard]

If simply being me was a marketable skill, then I would hope I would be extremely grateful. Currently though, I have to actually be useful to make money.

Re:Not bribing

[cheekyjohnson]

If someone created a game that used your likeness wouldn't you think you should at least be asked permission to do so?

I might prefer to be asked for permission first, but I don't believe that censorship is the answer or that I should be able to stop them from arranging data in a certain way.

somewhat California-specific

[Trepidity]

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.

Why Should EA Profit from His Likeness?

[nephorm]

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.

Re:some are more equal than others

[oodaloop]

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.

Re:Does this apply to all athletes?

[Anubis IV]

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.

Re:some are more equal than others

[HornWumpus]

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.

Re:some are more equal than others

[Anonymous Coward]

Oceania has always been at war with Eastasia.

I'm not with the EFF on this one

[Dynedain]

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.

Re:Does this apply to all athletes?

[Dynedain]

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.

Tetris v. Xio

[tepples]

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.

Re:Does this apply to all athletes?

[Dynedain]

Exactly the point and why their is a lawsuit against both EA and the NCAA.

But they're not.

[raehl]

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.