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

Re:some are more equal than others

[GodfatherofSoul]

Isn't that Animal Farm?

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?

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

[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: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.