Columnist Accuses EA Of 'Identity Theft' For Using Player Likenesses
from the doesn't-pass-the-laugh-test dept
Reader LCD points us to a piece in the New York Daily News that is so utterly stupid I don’t want to spend much time on it—but it deserves (nay, requires) a brief pause for ridicule. According to the column by Andrea Tantaros, who almost exclusively covers politics and should probably stick to that, EA’s use of football players’ likenesses in video games (a topic we’ve covered before) is akin to identity theft:
Identity theft is a huge problem that affects millions of Americans each year. If a crook stole your most personal information and used it to make a buck, you’d be furious.
And, of course, that’s illegal. But if you are a corporation, you can steal all the identities you want for profit.
That’s what video game company Electronic Arts is doing when it deliberately exploits the likeness of the players it uses in popular video games. And it doesn’t pay them a cent.
Uh-huh. Identify theft is about serious criminal fraud, not the violation of publicity rights that may or may not actually exist. To accuse EA of identity theft is hyperbole in the extreme, and makes it hard to take the remainder of the column seriously.
As for that remainder, it makes a little bit of effort to address the real issue, but Tantaros simply takes it for granted that everyone has some sort of innate human right to control any and all usages of their likeness. That’s not at all the case, and while there is room for some reasonable debate on the merits of publicity rights, it isn’t going to stem from frivolous accusations of identity theft.
Filed Under: identity theft, likeness, video games
Companies: ea
Comments on “Columnist Accuses EA Of 'Identity Theft' For Using Player Likenesses”
Breaking news! TV companies shut down for allegedly capturing people inside little boxes.
EA *does* pay players through the fees it pays to the NFL, MLB, NBA, etc.
If you think, even for a picosecond, that EA does not have very elaborate licensing deals with these notoriously litigious organizations, you are braindead.
In fact, a single, solitary google search for “EA NFL License” reveals that EA is the *exclusive* licensee of NFL video game rights.
The brain-deadedness of this assertion makes me question whether Ms. Tantaros is even qualified to write politics, much less straying into legal commentary.
Huh.. last time I was the victim of identity theft, the guy emptied my bank account. I guess times are a-changing..
Response to: Anonymous Coward on Mar 7th, 2012 @ 7:24am
Tanks for saving me the time to write that. If the NFLPA is mot getting it’s share from the EA contracts, then their beef is with the NFL, not EA. It’s all in the CBA. It’s not the NFL’s fault if the player’s association signed a bad record deal.
and further more
notice the link on the authors name does NOT show the authors likeness. That would be Identity theft. Just like all those websites that make any money while displaying HER picture. Time to call the police.
Did you know that taking pictures of someone even steals their SOUL? I know, because I read about it.
“That’s what video game company Electronic Arts is doing when it deliberately exploits the likeness of the players it uses in popular video games. And it doesn’t pay them a cent.”
This isn’t even true. EA pays the NFL for a license to produce NFL-branded video games. The NFL then pays the players through the revenue sharing that’s in place via the collective bargaining agreement.
A simple visit to Google with the terms EA and LICENSE in the same search could have saved his reputation as a columnist. But then again it would have prevented us from laughing over his sheer stupidity.
Google/search engines: use before saying something you don’t have a clue about.
Considering an awful lot of ppl nowadays have replaced their brains with Google search system…
I had a picture painted of me. It looked to much like me and I sued the artist for identity theft.
Andrea Tantaros is committing identify theft as well by his standards, as from what I can tell he apparently resembles (and acts like) very choice portions of my anatomy.
Contract???
Let’s also look at the possibility that these players may have signed away their likeness by agreeing to some sort of weird contract. It’s idiotic to call this identity theft but it’s not idiotic to think that if the player DID NOT agree to their likeness being used, they might have a case.
The right of publicity is a strange law, and I sort of understand it in terms of living people wanting to protect themselves from corporations using their likeness w/o consent… WOULD YOU LIKE YOUR PICTURE TO BE ON A BOX OF WHEATIES w/o being paid, or at least being asked? Where the law falls apart for me is right of publicity and dead people. The estate of James Dean racks up a lot of money every year from a really crackpot concept that the likeness of a dead celebrity can be “PROTECTED” and licensed. This is totally stupid, and it needs to end. I should be able to print tee shirts with James Dean’s face on it all day and not be threatened with a lawsuit.
First of all this college athletes have been getting exploited by colleges, let alone videogame companies for years now. Colleges make millions of dollars off these kids and they don’t give them a dime, same goes for games featuring them.
And even though the NFL has the NFLPA it is still a pretty raw deal that a game company can make a bajillion dollars using a player and that player doesn’t see a dime extra – hell he might even be out of a job if his team cuts him, etc.
It’s not identify theft per se, but I think Techdirt is clearly avoiding the obvious issue because Tantaros is a conservative figure and they don’t like her. Yeah, she used the wrong words, but it is a very real issue.
Andrea Tantaros for President
She really should run for office. It’s a perfect fit. Spout off about crap of which you have no understanding and make ridiculous comparisons to other things that are unrelated, making sure the comparison puts it in a bad light. You now have something that needs to be made into law. Brilliant!
Andrea you would get my vote for sure! No wonder you write about politics.
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This is exactly why video sport games should only use the likeness of players that have been dead for 70 years.
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Identity theft is a huge problem that affects millions of Americans each year. If a crook stole your most personal information and used it to make a buck, you’d be furious.
And, of course, that’s illegal. But if you are a corporation, you can steal all the identities you want for profit.
That’s not just using the wrong word, that’s just being a complete idiot
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“First of all this college athletes have been getting exploited by colleges…”
If college athletes were paid, they’d be classified as “professionals” and ineligible to play in college sports.
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It evens out, though, since you just used his name without paying royalties.
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Also, as others mentioned, they pay for licenses to do this, if the NFL doesn’t pass on the money that’s an issue between the players and the NFL and has nothing to do with EA
I’m sorry, did anyone actually read Tantaros’ article? She’s talking about the NCAA series of EA games, not the professional league games such as Madden. The latter games actually produce revenue for the players through licensing deals with the players’ unions.
College players do not have the same benefit, as they lose their scholarships if they make money off playing sports. While I agree that comparing EA’s use of likeness to identify theft is stupid, the article makes an unintentionally valid point, in that college players continue to get the short end of the stick of college sports, living in a practically slave-labor economy where they see nearly 0% return on their investment of blood, sweat, and tears. If the college players were allowed to have a licensing deal with EA, this wouldn’t even be an issue at all.
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That’s why I will have nothing to do with college football. Everyone except the players is paid, sometimes in the millions.
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Umm…they get free tuition if they’re good, don’t they? For me that would have come out to being paid around $150k a year. Pretty sweet job if you ask me.
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I’m not avoiding anything – and this has nothing to do with partisan politics.
As I said at the end of the post, I don’t think that publicity rights are categorically wrong – though I do think they are open to widespread abuse and trolling if not handled correctly.
But we can’t even come close to having a productive conversation about that if defenders are going to spout ridiculousness like this – claiming that it’s “identity theft” and that everyone has an automatic right to control every use of their likeness. That is a) not even close to what the law says and b) really, plainly obviously stupid if you think about it for more than ten seconds.
If you are interested in a more in-depth look at publicity rights, check out this post:
http://www.techdirt.com/articles/20101020/03475811495/the-rise-of-a-new-intellectual-property-category-ripe-for-trolling-publicity-rights.shtml
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Just because their tuition for free if they’re on scholarship (which, at a D-I school, is about 75-80 players), doesn’t mean they are actually getting an education. As a grad student, I taught several courses at a D-II school and had some football scholarship players in class. Honestly, most of them shouldn’t have even been in college, that was how poorly prepared they were for higher education. But because they could play some football, they were able to skate by with Cs and Ds. While this is just my experience at a D-II school, I would not be surprised if the majority of football scholarship players got very little out of their “free” education.
The whorish system starts with the NCAA, not EA. If the NCAA actually cared (mind you, the same organization that maintains the FBS system for profit from higher profile bowl in spite of an FCS playoff system), it would take issue against EA’s practice.
I’m sure Andrew Luck, Brandon Weedon, Robert Griffin III are absolutely pissed, PISSED I say, that they will get picked in the first and second round of the upcoming NFL draft. And they will be even more pissed when they secure an NFL contract.
Some players will not get that benefit, but its incredible to assume these players receive no benefit. They also have to be scholastically eligible to play, and thus, they earn an education. If they are a scholarship player, that is money in the pocket. If they are a walk-on, they could be the next big player for the team.
She might’ve had a point, but she ruined her point by using the words “Identity Theft” to describe the situation.
It’s like calling Copyright Infringement theft. It’s dishonest and diverts people’s attention from the real problem. It cloud’s people’s minds with scary words and makes them shut down their brain and just react emotionally.
Bad author. But, then again, she must’ve picked the habit of using weasel words from all the political coverage she did (does?).
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They got a shot at professional sports, didn’t they? I’m not saying a great chance, but my degree only gave me a chance. I got some lucky breaks, was in the right place, did some work, etc… and turned it into a career. I know people from my same class with the same degree, same scores, etc… that didn’t get that same break and are now working retail.
They got a shot to progress in what they wanted to do as a chosen profession, which is about all college can give you in any form.
Let’s not pretend they’re getting nothing out of it is all I’m saying, because they’re getting better than what they might have had otherwise.
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This was supposed to be in response to the AC @ 8:12am.
How could anyone see a football player’s likeness somewhere and not think “licensing deal”? I don’t even like sports, and I still know that sports stars show up in deodorant commercials and whatnot.
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Nope. I’m a practicing IP Attorney, and I think that this is a load of horseshit.
“it is still a pretty raw deal that a game company can make a bajillion dollars using a player and that player doesn’t see a dime extra – hell he might even be out of a job if his team cuts him, etc”
1. It is not a raw deal for a player that is already making tons of money for playing the sport he loves. The idea that he is entitled to extra money for literally doing nothing is kind of absurd. Let’s not even get into the whole morality of publicity rights debate — the video game companies can get away with using player likenesses *without paying a dime* and this is legal, as it should be. That there is official sponsorship is pure icing for the NFL *and* EA, as they both make more money.
2. If you are complaining about the unfairness of bargaining leverage between players in major league sports and the leagues themselves, (a) cry me a river (b) get in line (c) it is completely un-fucking-related to the issue of whether there is an objective moral obligation to remunerate sports players for use of their likeness in a video game. By the way, I don’t think there is such an obligation.
So, no. It has fucking nothing to do with Tantaros being conservative.
It has to do with the entire argument being a mix of idiotic and irrelevant. Irreliotic.??
? Use of Irreleiotic without attribution to IP Lawyer constitutes a violation of Trademark Law, and will be prosecuted to the fullest extent of the law.
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Right, because the free university education, fully subsidized housing, and living stipends equate to slave-labor.
The article is bullshit. EA purchased a license from the NCAA. It isn’t their problem after that. I am quite certain that when a player agrees to play for a school they sign an agreement covering this type of thing. If players have an issue they can take it up with the school or choose not to play.
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Your point is so stupid that I question whether I should even reply to you, but the point is that they are profiting off the players. It doesn’t matter if they are “literally doing nothing”. How would you feel if I took your picture and started using it on my business and making lots of money using your face on my advertising? You’d feel wronged right? You’d feel entitled to money right? Well that is how players feel.
I don’t feel sorry for pro players because they make lots of money, but this isn’t about how rich they are it’s about what’s fair. Of course they usually sign this types of rights away in the nfl, but it’s a totally different story in college where the abuse blatant and rampant. College coaches make millions of dollars and players get a crappy degree that means nothing and maybe a shot at the nfl if they’re good enough.
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“Colleges make millions of dollars off these kids and they don’t give them a dime, same goes for games featuring them.”
Yeah and that is an issue with the colleges refusing to allow their players to accept any money and then contracting their likeness to the games companies and accepting the checks on their behalf.
The games company’s just want to use the players, they don’t care who they have to pay. Unfortunately for the actual players the organisations they play for claim all the money and forbid them for getting any compensation for it.
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It is bullshit that they are suing EA. However the way colleges like to fuck their athletes over and deny them a slice of the money they make for selling their games and likenesses should not be dismissed so quickly.
“Reader LCD points us to a piece in the New York Daily News …”
That’s all I needed to see: a big red flag that the topic at hand is either inflammatory or ill-informed. Too many things in life to get agitated over; Daily News drivel ought not be one of them.
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Oh you don’t even know the beginning of it! Why, at my high school they came with whips and chains and dragged several players away. They yelled for help and fought to get away from the slave drivers, but they were helpless. While I was in college, I remember seeing several players beaten badly as they tried to get away. They didn’t want to play anymore, but the coaches forced them to at gun point.
When will we as a society wake up and realize that nobody wants to play football!!! It’s all slavery!!!
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Isn’t EA paying licensing rights to the NFL and NCAA ect? Isn’t they problem really those organizations charging EA for the right to use the players images and not passing the money they make off of this to the players?
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True, but when the university is making millions of dollars of of them that seems a little exploitative. It would be like a business major having to run a successful multi-million dollar corporation without salary in exchange for free tuition and crap housing.
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*Lather, rinse, repeat…*
EA pays licensing and other fees to the NFL. NFL CBA has a revenue sharing agreement with the players. Licensing fees fall into the revenue column. Ergo, players are being paid for the use of their likeness.
Please take the tin foil off your head. It is interfering with your abilities at reading comprehension.
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Seems like she is perfectly suited to politics. Making stuff up and presenting it as fact is exactly what they do. She could probably get a job with RIAA if she worked on the quality of her bullshit.
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And that would be different than landing a nice paying job, screwing around and not taking it seriously and ultimately getting fired?
It’s not my/yours/anyone’s fault if someone hands them a full ride to college and their choice is to waste that opportunity.
Few of us feel bad about the lottery winner that blows all his money and ends up right back where they started if not worse.
Why would we shed a tear for these guys?
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“It would be like a business major having to run a successful multi-million dollar corporation without salary in exchange for free tuition and crap housing.”
No, boy, it would be like a business major (who hasn’t yet graduated) working for a successful nulti-million dollar corporation without salary…
It’s called an internship.
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“How would you feel if I took your picture and started using it on my business and making lots of money using your face on my advertising?”
If the agency/company I had signed a contract with allowed you to do so (as the NCAA does with college players, and the NFL and all other professional sports leagues do with pro players) then there’s nothing I could do about it, boy.
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“How would you feel if I took your picture and started using it on my business and making lots of money using your face on my advertising? “
I don’t know quite how one uses an image ‘on a business’ other than perhaps, as a billboard, but this schoolyard view of sponsorship rights (also known as the Right of Publicity for those with their textbooks out) deserves an answer in two parts, as you clearly missed precisely the point I’m trying to make.
1. Use of my image, qua image, is 100% okay by me. Go fucking hogwild. Put me up on billboards, in magazines, in newspapers. I absolutely would not feel entitled to make money. I simply wouldn’t. Nor should you.
2. There is a huge, huge difference between using someone’s likeness *and implying sponsorship.* If someone was using my likeness to promote their brand of contracts, I would absolutely be pissed if they did so without my permission. If my picture, however, was incidentally used on the cover of a video game (presumably about handsome people) I wouldn’t give a flying fuck. Now, if the video game was about superlawyers, use of my image would probably imply sponsorship. This, again, would be a problem. If you cannot distinguish between use of images as sponsorship and use of images as images, because they convey a set of objective facts about the world as represented visually, I cannot help you. Talk to your priest.
The fact of the matter is that it is an objective fact that pro athletes play in pro sports, so using their images in a video game about that sport should not — and is not, please note this part, such use would NOT be covered by IP law — be a use that is protectable under intellectual property law, any more than you have to pay Angela Merkel for use of her image in reporting about Germany or paying Tiger Woods for use of his picture in an article about golf. I will fully cede that the player on the cover of a video game that is about the sport he plays is a sponsorship type use of that image. Using his image *in the game itself*, however, is not.
“I don’t feel sorry for pro players because they make lots of money, but this isn’t about how rich they are it’s about what’s fair.”
I do not, in any conceivable sense of the word, think that it is ‘fair’ to pay someone simply for the use of their image. They have not incurred any personal cost, they have not endured any labor, no tangible good has been taken from them. I do, however, fully support the idea that people should retain the right to control the use of their image in ways that imply they approve of or endorse that product. Full stop. The two issues are wholly and utterly unrelated. Control of sponsorship has nothing to do with ‘getting paid.’ It has to do with falsely attributing approval, the same way that putting a logo on a product indicates the manufacturer, which is a guarantee of quality / source. So, whereas trademark is based on consumer protection, sponsorship / rights of publicity is a dual balance between consumer protection (the ability to not pass off goods as if they had been approved by people who do not approve) and defamation (falsely attributing statements to persons, in this case, sponsorship). If people want remuneration to be a part of that control mechanism, that is an entirely separate issue, and one I have absolutely no problem with. Go with god. That concept has the blessing of common sense, intellectual property law and a sense of fairness that is not based on the technologically absurd and impossibly reductionist proposition that all uses of people’s images need to be both rights-cleared and paid for.
It is clear you believe in the entitlement theory of intellectual property. As someone who clearly knows more about intellectual property than you do, let me just say I do not.
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“While I agree that comparing EA’s use of likeness to identify theft is stupid, the article makes an unintentionally valid point, in that college players continue to get the short end of the stick of college sports, living in a practically slave-labor economy where they see nearly 0% return on their investment of blood, sweat, and tears. If the college players were allowed to have a licensing deal with EA, this wouldn’t even be an issue at all.”
Then the players shouldn’t be playing college football.
That way, they won’t be taken advantage of by colleges.
Of course, the players probably won’t be seen by pro scouts, then signed by pro teams, but hey, that’s the way it goes!
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“The games company’s just want to use the players, they don’t care who they have to pay. Unfortunately for the actual players the organisations they play for claim all the money and forbid them for getting any compensation for it.”
Agreed.
The game company is following the law and paying a license fee to the organization that legally holds the rights.
Now, how that organization that currently holds the rights acquired them, and what (or who) they pay is another matter entirely.
But Electronic Arts is legally, morally, and ethically free and clear.
small typo
“Identify theft is about serious criminal fraud,” First word should be identity.
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Sue the school!
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How would you feel if I took your picture and started using it on my business and making lots of money using your face on my advertising? You’d feel wronged right? You’d feel entitled to money right?
Of course not. That’s ridiculous. It’s not like having a face represents a lot of effort or investment on my part. As long as you try to let me know before the commercial starts airing I don’t see the problem.
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I work for a multibillion dollar company. I make a decent wage. Other people who are much better or have a more highly valued skillset than me make an amazing wage (in my view) of double, triple, quardruple, or more of what I make. But not billions of dollars. They earn according to what the market values their skills at.
It’s called business. The players are compensated according to their abilities and the demand in the market for them, plain and simple.
If that’s the case, George Washington’s descendants will make millions after Assassin’s Creed III comes out.
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Think of Abe Lincoln’s descendants when “Abraham Lincoln: Vampire Hunter” hits the multiplexes, game shops, and comic book stores!
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Don’t forget that you are assuming that all sports are equally bringing in millions of dollars. At many schools that major sports “profit” cover the “loss” of the minor sports. Assuming all athletes at the college level are being exploited is an oversimplification of a serious issue.
The Daily News is Clueless
I went the the Daily News site to comment on the original story. It required me to register to comment. Ok, i thought, how hard could this be…
Well, the link on the original page to register took me to another Daily News page with a banner ad for evony. No registration form. I thought, that is odd, lets try this again. Same result. I tried the link in the header to register, now we are cooking!
No, I have to setup a secret question, secret answer, username ( not email ), zip code, country, gender and year of birth – all required in addition to email, first and last name. Plus I am solicited for info on my industry, job title and income?
Or I can link my social network accounts to their site.
Right. The columnist being clueless about technology is a mere reflection of the clueless registration of the Daily News.
All that just so I can leave a comment?
Wow.
http://www.andreatantaros.com/bio.cfm
Reading her bio, I know understand what she is.
YASD – Yet Another SpinDoctor.
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“If the NCAA actually cared (mind you, the same organization that maintains the FBS system for profit from higher profile bowl in spite of an FCS playoff system), it would take issue against EA’s practice.”
Why would the NCAA “care”?
They’re the ones who licensed the players’ images to Electronic Arts!
They not only condone “EAs practice”, they encouraged it and collected a hefty fee!
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1. your I know more than you schtick is cute, but it doesn’t make what your saying make any more sense. I don’t care if you are a laywer, what you are saying is stupid.
2. It’s clear that you are being intellectually dishonest and are complicating the issue with legal nonsensee in order to sound right. Your not. You’re lying when you say you won’t be upset if I take your image without your permission and use it for my own public, personal gain. It’s BS and there really is no point trying to discuss anything with you.
The moment I take your image, your wife’s image, your daughter’s image and use it to make money without giving you a dime you will take me to court. You are lying if you say otherwise.
Next time when you try to discuss something try to sound less full of yourself and self important. MAybe then you will past the smell test. SMH.
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You think someone’s lying just because he isn’t bothered by the same things you are?
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Can you please just answer one simple question: Why does someone deserve financial compensation for doing absolutely nothing? Why does someone deserve financial compensation for somebody else creating a virtual representation of them (i.e. doing actual work) which results in free publicity for that person? Please explain.
A football player being used in a video game is simply a recreation of a factual situation. This person plays football in the real world, now he also “plays” football in a video game.
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“…college players continue to get the short end of the stick of college sports, living in a practically slave-labor economy…”
Then they should stop playing football and go and and get a job like the rest of us. Then they can get the short end of the stick of the real world instead, living in a practically slave-labor economy, like the rest of us. It’s entirely their choice.
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If you really are a lawyer, it’s good to see that:
a) you seem to be sane.
b) you have a sense of humour.
If there isn’t already, there should probably be some rights for people who make their living from their image, e.g. models, probably actors as well. But, as sportsmen earn their living from their skills, not their faces, I’d say they’re fair game for use in a game.
I had a similar issue on the last football game I made, but with rights to use footballers names. I never did get a clear answer, and ended up just making up names close to the famous ones.
Also, having worked for EA on some of their sports titles such as FIFA Soccer, I can categorically state that EA certainly pays a shitload to the agencies involved, such as FIFA.
While all you techie nitwits were busy laughing at this article, I made a costume where the neck was 1 foot above my head, attached a 21″ LCD connected to a PS2 playing EA Womens’ College Basketball 2003, zoomed in on #43 Leticia Miller’s face and froze the picture.
I proceeded to obtain a drivers license at the DMV, a copy of her original birth certificate, withdrew $100 from her account at a local bank, and opened several other shell accounts and corporations in her name.