There's no bigger business in the entertainment field than video games. Plaintiffs and lawyers seeking large payouts tend to head to where the money is, which explains the spate
of highly-dubious "publicity rights" suits filed by former athletes
and the occasional deposed dictator
Publicity rights are highly dubious themselves, with only a few states even recognizing that this supposed "right" exists. This has led to particularly lucrative estates "moving" dead celebrities to new "hometowns"
in order to exploit local laws.
But there's money in video gaming, and a whole bunch of former players have filed cash grabs in courts in hopes of securing what's never been rightfully theirs. Electronic Arts -- being the wealthiest video game producer in the world -- is a frequent target of these lawsuits. EA secures these "rights" by signing contracts with players' representatives: various players associations and entities like the NCAA -- who in turn have secured signed contracts from those they represent. These suits claim the contracts don't allow for the ongoing "exploitation" of their likenesses in recreations of historical teams
But it's not as though they never had the option to not
sign a contract with the NFLPA or NCAA or whoever. Various superstars have opted out of these contracts over the years. Many, many basketball video games were produced with an indescript #23 (or no one at all
) standing in for Michael Jordan. Bill Belichick, the Patriots' head coach, has recused himself from EA's pro football offerings. Players of those games see nothing more than a sweatshirted dude known as "NE Coach"
when controlling the current Super Bowl champions. So, there are -- and were
-- options. But those options were ignored and years later, the cry of "GIVE ME MONEY" is now heard in courtrooms around America.
The Ninth Circuit Court arrived at a truly troubling conclusion in Keller v. Electronic Arts
, which featured eight plaintiffs arguing that the video game giant violated their publicity rights by using their likenesses. The opinion starts out promisingly enough, stating that video games -- like movies, books and plays -- are likewise protected by the First Amendment. But then the judges proceeded to qualify that seemingly crystal clear statement.
In this case, we must balance the right of publicity of a former college football player against the asserted First Amendment right of a video game developer to use his likeness in its expressive works.
Weighing EA's "expressive" use of players' likenesses against California's expansive publicity rights law, the court found in favor of the plaintiffs.
Under California's transformative use defense, EA's use of the likenesses of college athletes like Samuel Keller in its video games is not, as a matter of law, protected by the First Amendment. We reject EA's suggestion to import the Rogers test into the right-of-publicity arena, and conclude that state law defenses for the reporting of information do not protect EA's use.
Another publicity rights case
, again involving EA Sports and a handful of former athletes, is in front of the same court. Eugene Volokh (of the recently-paywalled, WaPo-relocated Volokh Conspiracy
) has submitted an amicus brief on behalf of EA
, along with a long list of big names in the IP-meets-free-speech field, including Rebecca Tushnet (Georgetown prof and the author of the excellent 43(b) blog
), Geoffrey Stone (PCLOB member
and fearless free speech defender
), Eric Goldman (Santa Clara Univ. prof and an excellent blogger himself
), and Lawrence Lessig, who really should need no introduction
at this point.
The amicus brief [pdf link
] not only lays out the case for EA's protected use of players' likenesses, but also invites the court to reexamine its flawed decision in Keller v. Electronic Arts
Keller’s conclusion that references to real players in fantasy sports video games are not protected by the First Amendment is mistaken, and dangerously so. The Keller majority begins with the sentence, “Video games are entitled to the full protections of the First Amendment, … ‘[l]ike the protected books, plays, and movies that preceded them[.]’” 724 F.3d at 1270-71 (quoting Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2733 (2011)). It therefore follows that, to the extent video games may infringe the right of publicity for depicting or referring to real people, so may books, plays, songs, and films.
Thus, under the logic of Keller, the makers of the recent film Selma might be liable for a host of right of publicity violations unless they got permission from Coretta Scott King, Andrew Young, John Lewis, Harry Belafonte, and the heirs of Martin Luther King, Jr., J. Edgar Hoover, Lyndon Johnson, and others. The Academy Award-winning Forrest Gump might also have infringed historical figures’ right of publicity unless the filmmakers got permission from the Elvis Presley, John Lennon, and Abbie Hoffman estates. Simon & Garfunkel’s Mrs. Robinson, which asked “Where have you gone, Joe DiMaggio?,” might have infringed Joe DiMaggio’s right of publicity.
The brief points out that the circuit court is under no obligation to defer to California's screwed-up publicity rights law. It should instead defer to the First Amendment.
Fortunately, the law does not require such results. The Ninth Circuit is, of course, not bound by a state court’s interpretation of the First Amendment; but even under the California Supreme Court’s “transformative work” test, all these works, including the fantasy football video games involved in Keller and in this case, are constitutionally protected.
The conclusion that the First Amendment does not protect depictions of real people in expressive works, whether in fictional or non-fictional settings, cannot be right. Yet this is the world that the panel decisions in Davis and Keller risk creating. Whether to preserve, reverse, or modify the circuit law created by Keller thus merits this Court’s en banc attention — especially since this Court is the “Court of Appeals for the Hollywood Circuit,” White v. Samsung Electronics Am., 989 F.2d 1512, 1521 (9th Cir. 1993) (Kozinski, J., dissenting from denial of rehearing en banc), and for the Silicon Valley Circuit as well.
Hopefully, the court will be open to examining the earlier decision, which certainly doesn't align with the decision's opening declaration that video games are just as protected by the First Amendment as their predecessors in the entertainment field. To do otherwise is to further open Hollywood's home court to further exploitation by IP ambulance chasers and litigious tourists.