Judge Says Video Games Can Use Sports Stars Likenesses

from the protected-by-the-first-amendment dept

Earlier court rulings have found that sports leagues cannot stop videos games from using player stats, since that's factual information. But, what about player likenesses? Many had assumed that was still forbidden without a license, but a new court ruling has found otherwise. Former football player Jim Brown had sued EA, claiming the use of his likeness violated his rights, but a district court judge has dismissed the case, saying that video games are "expressive works, akin to an expressive painting that depicts celebrity athletes of past and present in a realistic sporting environment," and thus are protected by the First Amendment. The case will almost certainly be appealed, but for now, it's a big win for video game makers and their ability to use player likenesses in their games without licensing them first.
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Filed Under: copyright, first amendment, likeness, publicity rights, sports stars, video games
Companies: ea


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  • icon
    slackr (profile), 30 Sep 2009 @ 5:53pm

    3D modelling

    I'm guessing that this really is only going to apply for the has-been athletes. My understanding is that most popular sports games who want accurate current hot-property athlete likenesses pay to get them using services like 3D scanning/modelling.

    reply to this | link to this | view in chronology ]

  • icon
    slackr (profile), 30 Sep 2009 @ 5:59pm

    Hmmm

    I wonder if this screws Courtney Love's recent argument about the Guitar Hero use of the deceased Kurt Cobain?

    http://techdirt.com/articles/20090910/1713046154.shtml

    reply to this | link to this | view in chronology ]

  • icon
    MBraedley (profile), 30 Sep 2009 @ 6:31pm

    What about the UFC games? Didn't the owner say he would kick out anyone who had their likeness in the game? Or maybe he was a little more precise and said licensed their likeness.

    I also assume there'll be international issues to deal with as well, since most NFL players are American, whereas in the NHL and MLB, you have a significant number of players from other countries. What happens if an individuals right to their likeness (whatever that means) in their country trumps an equivalent to the first amendment?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Sep 2009 @ 7:31pm

    Don't think so

    It should win on appeal. At least as presented in the summary, this really doesn't seem fair.

    The image of a celebrity is a large part of their "product". Andy Warhol demonstrated this point (to his credit).

    Coming up with a game concept may be artistic (although, the concept of "sports games" can not in any way still be regarded as artistic. It's been done => not art. Art is novel, that's why we value it and protect it's representative output through copyright).

    Making a game is more of a craftsmanship. Not to say their isn't art in craft. But if you're repeating it, it's no longer art. Art was when someone came up with a novel technique in the craft. A cool "hack" is art. But once it's reused, it's not art any more.

    Packaging a game for mass market is not artistic. It's a business. Again, an initial business concept may have been "art". But these days, making a sports themed video game and packaging it up for the mass retail market doesn't even come close to art.

    reply to this | link to this | view in chronology ]

    • icon
      scarr (profile), 30 Sep 2009 @ 7:45pm

      Re: Don't think so

      Your definition of art is strange. By your logic, painting and sculpting marble aren't novel techniques in the craft, and haven't been reused for a long while, and thus wouldn't be art. Nor most blues music.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Sep 2009 @ 8:16pm

      Re: Don't think so

      Then there's nothing artistic about making a sculpture of a person: it's been done before. Or a bust. On the other hand, a sculpture of an exploding toilet is art.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Oct 2009 @ 5:32am

      Re: Don't think so

      “The most important thing in art is the frame. For painting: literally; for other arts: figuratively - because, without this humble appliance, you can't know where The Art stops and The Real World begins. You have to put a "box" around it because otherwise, what is that shit on the wall?”
      Frank Zappa

      "Art is making something out of nothing and selling it."
      Frank Zappa

      Ahhh, Frank knew. AC please try better. Start with 'credible' and then move onto 'bullshit'. When you start with 'bullshit' you're just a joke.

      reply to this | link to this | view in chronology ]

  • icon
    Cyanid Pontifex (profile), 30 Sep 2009 @ 9:26pm

    What's interesting is that EA will lose either way. If the case is appealed and the plaintiff wins, they have to pay out. If the case isn't, they lose some of their exclusivity.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Sep 2009 @ 11:57pm

    interesting precident

    If the appeal loses this really creates an interesting precedent. What happens when 3D graphics are seriously realistic... they can start putting actors into movies without paying for them. Movies are arguably far more artistic than a sports game.

    reply to this | link to this | view in chronology ]

  • identicon
    MCR, 1 Oct 2009 @ 5:48am

    Current Stars

    Current, and even some past players, are licensed through the league itself and the players respective unions. EA has to get these licenses in order to use the team franchises (ie what's the point in having Peyton Manning's likeness if he's not playing for the Colts).

    Only players not represented by the Union, or players who expressly request their actual name be left out of said game (think MJ in the old NBA live franchise) can avoid being in the game. This court ruling sounds like it overrides the likeness aspect, but I'm still pretty sure they couldn't use the players name (as most famous athletes name's are TM'd)

    reply to this | link to this | view in chronology ]

  • identicon
    Sergio, 1 Oct 2009 @ 7:26am

    Does this apply to everyone?

    I'm looking forward to playing as Sarah Palin in a Helicopter Hunting Simulator and knowing she won't get a dime for it!

    reply to this | link to this | view in chronology ]

  • icon
    ajgajg1134 (profile), 1 Oct 2009 @ 2:34pm

    Finally video games triumph, but hopefully no longer

    I completely agree with the ruling in this case, and feel that this will be a great win for almost the entire video game industry. However, the video game industry itself has some problems. DRM? I mean COME ON! I just wish they could do what Techdirt is almost always recommending to the music industry.

    reply to this | link to this | view in chronology ]


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