9th Circuit Court Elevates Celebrity Privacy Rights Over Video Game Portrayals 207
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."
Re:some are more equal than others (Score:5, Informative)
Isn't that Animal Farm?
Re: some are more equal than others (Score:4, Informative)
Probably because you're quoting another Orwell work, animal farm.
Re:Does this apply to all athletes? (Score:4, Informative)
somewhat California-specific (Score:5, Informative)
It's worth noting that the U.S. has no federal copyright-like "publicity right". Authors have copyright, and inventors have patents, but the Copyright & Patent Clause does not authorize any other kind of IP.
California, on the other hand, has a specific law [wikipedia.org] granting celebrities exclusive use over their likenesses. Since it's a state law, in a federal court it prevails unless either it's preempted by a federal law under the preemption doctrine [wikipedia.org], or violates an incorporated-against-the-states right of the people, such as First Amendment. Here, the court held that California's law didn't violate the First Amendment.
That isn't good, but it doesn't actually mean that celebrities have some kind of inherent or national right to control their likenesses. States which disagree with this kind of outcome should make sure they repeal, or don't pass in the first place, laws like California's.
Re:Does this apply to all athletes? (Score:4, Informative)
What union? This is the NCAA, i.e. they're in college and aren't employed to play.
For professional sports, sure, but for the NCAA there are strict rules forbidding the players from receiving payments. Licensing their likeness may fall outside the bounds of what's restricted, so it may be possible for them to do so, but there aren't any unions that speak for all of the players. The closest thing is the NCAA itself, but as far as I'm aware (and I may be very mistaken, since I'm disinterested in all of the football fanaticism I see around me in America), the players don't sign away their rights to the NCAA in order to play for their school's team.
Re:Why Should EA Profit from His Likeness? (Score:3, Informative)
I have to agree with the third judge on the panel. They aren't profiting from his likeness. They are profiting from the NCAA statistics.
They have a contract with the NCAA to use NCAA stats. The numbers are all NCAA statistics.
If we follow the majority judges' logic to the end, groups will be unable to publish statistics on the players unless they have an agreement with every player. Agreements with the league about the league's statistics are no longer good enough. Sorry ESPN, your costs just went up.