Publicity Rights vs. Free Speech Goes To Court

from the free-speech-ftw dept

We've been talking a lot about publicity rights cases lately, and how this new form of "intellectual property" (based on various state laws) is already being widely abused in ways that appear to violate First Amendment rights. It looks like we may finally be getting some lawsuits to test the legality of such publicity rights claims. There's been an ongoing case filed against EA over whether or not it could use images of college football players without their consent. Many seem to think this case will bring the issue up to the level of Supreme Court review, and they're jumping in with amicus briefs. This is one time when I'm going to side with the likes of the MPAA and Viacom -- both of whom argued that EA is right and that the First Amendment should prevail over these rights. Of course, it's amusing that they seem to take a totally different stance when it comes to other forms of intellectual property. But those organizations aren't known for their logical consistency...


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  •  
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    Anonymous Coward, Nov 16th, 2010 @ 10:20pm

    One day people will look back and say "There were some crazy people in those days"

     

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    rowena cherry (profile), Nov 16th, 2010 @ 10:53pm

    Free Speech

    We're talking about "college" players. Under some laws, for the purposes of insurance and financial arrangements college kids are still considered children.

    No, they should not be exploited without their consent.

    Besides, I don't see how "Free Speech" rights cover the "right" (or lack thereof) of someone else to make money (how is that "free"?) off the images of these young people.

     

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      Ccomp5950 (profile), Nov 16th, 2010 @ 11:01pm

      Re: Free Speech

      Within the United States, People are Adults when they reach the age of Majority, they may sign contracts, they may vote, they may run for office. They are not kids.

      If they are Playing sports in a national league they are no longer private individuals but are acting in the public. Stock Photos and Stats are facts and may as well be used by anyone, either for fantasy leagues or Video games.

      Free Speech has nothing to do with a price tag. I have no idea where you think Freedom of Speech has anything to do with being nullified once money is made. Perhaps you would like to explain your stance on newspapers charging for their papers since Freedom of the Press is mentioned in the same breath where Freedom of Speech is established?

       

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      TechnoMage (profile), Nov 16th, 2010 @ 11:39pm

      Re: Free Speech

      Actually I believe the term you are looking for is "Dependant" not "Child", legal Dependants are MUCH different than children. The venn diagram of the two would have a large portion covered by both, but there would be portions of both not in the union section.

       

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    Frankz (profile), Nov 16th, 2010 @ 11:00pm

    This is all about Commerce, and [EA] trying to make money off of something that's not theirs.

     

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    Doug, Nov 16th, 2010 @ 11:47pm

    Welcome to the future

    I see this as part of an inexorable movement toward a world in which the rights to virtually every word, phrase, image, sound and idea will be owned by some legal entity, and any significant act of public expression will incur usage fees and be subject to permissions. The irony is that every step that the rights ownership industry takes in this direction is being taken in the name of Freedom.

    Freedom -- it's not just a word, it's a Slogan!

     

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      Anonymous Coward, Nov 17th, 2010 @ 7:54am

      Re: Welcome to the future

      I get it.... Like Demolition Man, but instead of issuing citations for swearing, we'll all be issued 'compulsory verbal expressive licenses' anytime we mention something owned by someone else....

      I can hardly wait...

      Freedoom -- It's not just a slogan, it's where we are heading, freely into our doom....

       

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    TechnoMage (profile), Nov 16th, 2010 @ 11:55pm

    What about

    Maybe this might be a good time to ask this question, since I see these as possibly related issues.

    How can the NFL's saying ==> "This telecast is copyrighted by the NFL for the private use of our audience [and] any other use of this telecast or [of] any pictures, descriptions or accounts of the game without the NFL's consent is prohibited" be legal. I mean specifically, how can an account of a factually true event be prohibited. I understand that re-use of audio or video from their broadcast would be one issue. However, Why can I not say "I sat at home and watched CBS on Sunday at 1PM of the [team XXXX] playing at [team YYYY] and the game was great.... {insert descriptions of most, or all, of the game}... Then, the game ended with a 99 yard kickoff return."

    This might be combination of a "publicity rights"{of the teams/players}/"hot news"{desire for only those who pay the NFL to report}/ the inability to copyright facts/etc. Or I could be _way_ off base, but if anyone wants to chime in, I'd appreciate it.

     

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      abc gum, Nov 17th, 2010 @ 5:01am

      Re: What about

      Expect a C&D letter from the NFL.

       

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      nasch (profile), Nov 17th, 2010 @ 9:33am

      Re: What about

      It isn't legal, but the NFL is a large powerful rich organization, so they get away with it.

       

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      Anonymous Coward, Nov 17th, 2010 @ 11:22am

      Re: What about

      The NFL can make that statement because it's a big fat lie...

      But if they keep repeating it enough, people might actually believe them (you seem to, so it must be working for them).

      It's unfortunate that there aren't laws for claiming rights that you don't have and that don't really exist (there are a few that could be applied, but the punishment isn't enough of a deterrent to prevent them from continuing with these baseless lies).

       

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    darryl, Nov 17th, 2010 @ 2:05am

    Learn the law First Amendment only applies to prohibit direct government censorship.

    Thats right it does not deal with private action..

    So trying to hide behind the first amandment is a strawman right.

    Lets be honest for once Mike, or are you not aware of what the first amandment actually is for ?

     

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      Anonymous Coward, Nov 17th, 2010 @ 4:34am

      Re: Learn the law First Amendment only applies to prohibit direct government censorship.

      lol

       

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      Mike Masnick (profile), Nov 17th, 2010 @ 4:36am

      Re: Learn the law First Amendment only applies to prohibit direct government censorship.

      Learn the law First Amendment only applies to prohibit direct government censorship. Thats right it does not deal with private action..


      Hi Darryl, perhaps you should learn how the First Amendment works. The concern here is that privacy rights laws -- which are gov't -- restrict forms of free speech. Thus, it is a gov't action they're concerned about.

      So trying to hide behind the first amandment is a strawman right.


      Except, it's not.

      Lets be honest for once Mike, or are you not aware of what the first amandment actually is for ?


      Darryl, this is the third time I've proven you wrong in the past week.

      Will you respond this time?

       

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        out_of_the_blue, Nov 17th, 2010 @ 4:53am

        Re: Re: Learn the law First Amendment only applies to prohibit direct government censorship.

        "Thus, it is a gov't action they're concerned about." -- But it's gov't action to resolve which *corporation* gets the benefits: computer game maker or MPAA / Viacom.

        There's no public interest that I see in letting corporation EA take a "natural" person's image and use it in a frivolous game, for *sole* profit of said EA. I see *my* interests as aligned with (shudder) football players, as I too am a mere "natural" person.

         

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          Karl (profile), Nov 17th, 2010 @ 6:22am

          Re: Re: Re: Learn the law First Amendment only applies to prohibit direct government censorship.

          But it's gov't action to resolve which *corporation* gets the benefits: computer game maker or MPAA / Viacom.

          All those entities are on the same side in this lawsuit. There's no "or" about it.

          There's no public interest that I see in letting corporation EA take a "natural" person's image and use it in a frivolous game, for *sole* profit of said EA.

          If there were no "publicity rights" laws, EA would not have the *sole* profit. Nobody would.

          That is: EA's use of college football players' likenesses does not prevent other game companies, the NFL, broadcasters, or the players themselves from also using them.

          Or, if you mean that EA's sole motivation is profit... Well, that's a non-issue, because free speech protects commercial speech exactly as much as non-commercial speech.

          If EA's use of their likeness is not protected by the First Amendment, then non-commercial, public use of them is not either.

          Incidentally: They only get these "publicity rights" because they are public commercial figures (not "natural" people). Unless you use your likeness to make money, your interests aren't aligned with theirs.

           

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    out_of_the_blue, Nov 17th, 2010 @ 3:21am

    It's not for news or information: it's a computer game!

    That makes it sheerly commercial, and so "publicity rights" -- much as I despise that when actually used to suppress news items -- do reasonably apply, and there's no 1st Amendment problem.

    And again, 1st time you use an acronym in a piece, it should be written out, not least because "video game publisher Electronic Arts" puts an entirely different slant -- a correct one -- over what otherwise is reasonably inferred: Oh, some newspaper's 1st Amendment right to publish photos is being violated! It's an outrage!

     

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      abc gum, Nov 17th, 2010 @ 5:09am

      Re: It's not for news or information: it's a computer game!

      Wow ... you're really out there huh.
      What's the difference between a newspaper and game use - and please be specific.

      Oh, and you seem to be in the minority when it comes to understanding acronyms, as everyone else when stumpted is quite happy to use a search engine or whatever to look it up themselves.

       

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        out_of_the_blue, Nov 17th, 2010 @ 6:06am

        Re: Re: It's not for news or information: it's a computer game!

        If you wish me to argue with you, state a "connected series of points intended to establish a proposition", as I believe MP put it. I've no intention of answering endless questions.

        Your point on acronyms is that instead of Mike following good journalistic practice established for at least a hundred years, he should save a second of his time and leave an ambiguity for unlimited numbers of readers to waste their time guessing at. Evidently you consider him exempt from standard practice. In the particular case, his failure to expand EA as a video game company does change the impression.

         

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      nasch (profile), Nov 17th, 2010 @ 9:36am

      Re: It's not for news or information: it's a computer game!

      The 1st Amendment still applies to commercial speech, though with weaker protection. The court case is about whether publicity rights are more important than free speech in the case of commercial speech. Personally, I would almost always side in favor of free speech, because I think it's one of the most important principles of our society. Much more important than letting someone control how their image is used in public.

       

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    darryl, Nov 17th, 2010 @ 5:18am

    Hi, Mike, Perhaps I have learnt how the First Amendment works.. and you ?

    Hi Darryl, perhaps you should learn how the First Amendment works. The concern here is that privacy rights laws -- which are gov't -- restrict forms of free speech. Thus, it is a gov't action they're concerned about.

    So trying to hide behind the first amandment is a strawman right.


    Except, it's not.


    and how this new form of "intellectual property" (based on various state laws) is already being widely abused in ways that appear to violate First Amendment rights.

    Like how, specifically in what way does that statement indicate that they appear to violate First Amendment rights ??

    First Amendent is to allow you to speak out against the Government, protest and partition. Against the Government.

    First Amendent does not protect privite, or commercial interests, and it does not affect slander or liable laws.

    So if you government says you cannot protest about sub-prime loans, then you have a first amendment right to protect.

    But that does not extend to private or commercial, if you work for say Google, and you tell everyone you just got a pay raise, you are not protected by the first Amendment, or free speech..

    So again, how have you proven me wrong, what by saying "no it isnt".. you are going to have to do much better than that Mike !!!!..

    But maybe you should spend a little time reading the constitution first..

     

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      Karl (profile), Nov 17th, 2010 @ 6:36am

      Re: Hi, Mike, Perhaps I have learnt how the First Amendment works.. and you ?

      First Amendent does not protect privite, or commercial interests

      Say what? That is 100% false.

      You may be confused because commercial interests can themselves legally censor people, e.g. McDonald's can prevent employees from saying their food sucks, and Fox News can prevent Stephen Colbert from ever appearing on its network.

      Commercial interests cannot, however, be censored by the government, or through law.

      and it does not affect slander or liable laws.

      Neither of which are related to "publicity rights" laws. And slander and LIBEL laws are very, very often in conflict with the First Amendment.

       

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        out_of_the_blue, Nov 17th, 2010 @ 7:42am

        Re: Re: Hi, Mike, Perhaps I have learnt how the First Amendment works.. and you ?

        >>> First Amendent does not protect privite, or commercial interests

        >>> Say what? That is 100% false.

        Er, the quote is not exactly to my purposes, and while I usually agree with you (I think, I don't keep track), anyway, this isn't a "free speech" item: it's a person objecting to a corporation using their likeness in a computerized game. It's a contest of rights, not a person up against censorship by the gov't. To me -- and fie upon the medieval guild of lawyers who try to bury us by citing the dead hand of precedents; if those were any good, Dred Scott would still be law; American practice is to reason from first principles and eventually arrive at a morally sound and equitable position that holds individual rights as supreme -- a "natural person" has greater rights than a legal fiction known as a corporation. Case closed.

         

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          Anonymous Coward, Nov 17th, 2010 @ 8:52am

          Re: Re: Re: Hi, Mike, Perhaps I have learnt how the First Amendment works.. and you ?

          So this would be a complete non-issue if it was a sole indie developer making this game?

           

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          Karl (profile), Nov 17th, 2010 @ 6:41pm

          Re: Re: Re: Hi, Mike, Perhaps I have learnt how the First Amendment works.. and you ?

          it's a person objecting to a corporation using their likeness

          I said this above, but "publicity rights" don't apply to an average member of the public. They only apply to people who are public figures, and have a commercial interest in their image. They would almost certainly not protect you, or any commenter here. (Full disclosure: they might protect me, since I am a public performer.)

          If we create this new category of IP, rest assured it will turn out like copyrights and publishers. Those basketball players will be required to assign their "publicity rights" to the NBA, who will be the sole "owners" of those rights, above and beyond the players themselves. It won't guard against corporate exploitation; it will guarantee it.

          a "natural person" has greater rights than a legal fiction known as a corporation.

          Agreed. However, currently a "natural person" does not have those rights at all, and neither does a corporation. I think it's best we keep it that way.

           

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    darryl, Nov 17th, 2010 @ 5:26am

    Well Schooled ???

    I have to guess you went to school, in the US, and that they taught you some of the constitution.

    So how is it, Mike that you can display such a lack of knowledge on the subject, yet use it so often as a tool for your own gains.

    Did you NOT realise that the constitution does not affect private or commercial interests. That it is about being able to be critical of the Government without censorship..

    It has nothing to do with being able to say what you like, when you like.. and there are planty of laws that make very sure you dont..

    But the first amendment is not going to protect you if you take pictures of baseball players without their permission, it has nothing to do with a protest against the Government. Its commercial and private in nature, and is not covered by the first Amendment..

    Where you away on the day they taught you the constitution ??

     

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      Anonymous Coward, Nov 17th, 2010 @ 9:41am

      Re: Well Schooled ???

      Oh Darryl, I love how blissfully ignorant you are of your own stupidity.

       

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      Mike Masnick (profile), Nov 17th, 2010 @ 10:33am

      Re: Well Schooled ???

      Did you NOT realise that the constitution does not affect private or commercial interests. That it is about being able to be critical of the Government without censorship..

      It's funny that you call me ignorant of the Constitution and then make a statement that is one of the most ignorant I have seen.

      Want to try again?

      But the first amendment is not going to protect you if you take pictures of baseball players without their permission, it has nothing to do with a protest against the Government. Its commercial and private in nature, and is not covered by the first Amendment..

      You really might want to read some of the history of First Amendment caselaw in the US. It very clearly protects commercial and private speech in cases where the government seeks to regulate it.

       

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    Bengie, Nov 17th, 2010 @ 5:38am

    History

    Generations from now, they will look back at current politics with the same disgust that we get reading about child labor and witch trials.

     

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    duffmeister (profile), Nov 17th, 2010 @ 8:51am

    http://www.krages.com/phoright.htm

    This link is a lot of info about what is legal for photos in most places......

    here is an excerpt written by a lawyer:

    Members of the public have a very
    limited scope of privacy rights when
    they are in public places. Basically,
    anyone can be photographed without
    their consent except when they have
    secluded themselves in places where
    they have a reasonable expectation of
    privacy such as dressing rooms, restrooms,
    medical facilities, and inside
    their homes.
    Permissible Subjects
    Despite misconceptions to the contrary,
    the following subjects can
    almost always be photographed lawfully
    from public places:
    accident and fire scenes
    children
    celebrities
    bridges and other infrastructure
    residential and commercial buildings
    industrial facilities and public utilities
    transportation facilities (e.g., airports)
    Superfund sites
    criminal activities
    law enforcement officers

    The real issue is as follows:
    Who took the pictures used for the game, and under what circumstances.

     

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