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Electronic Frontier Foundation The Media Games

9th Circuit Court Elevates Celebrity Privacy Rights Over Video Game Portrayals 207

Posted by timothy
from the adding-devil-horns-should-be-enough dept.
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."
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9th Circuit Court Elevates Celebrity Privacy Rights Over Video Game Portrayals

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  • by Anonymous Coward on Thursday August 01, 2013 @04:42PM (#44451481)
    "Two judges on the panel found that EA’s depiction of Keller was not transformative."

    Ok, next patch they will transform his stats to the worst player in the game.
    • by bitt3n (941736) on Thursday August 01, 2013 @05:38PM (#44452019)

      "Two judges on the panel found that EA’s depiction of Keller was not transformative." Ok, next patch they will transform his stats to the worst player in the game.

      this is a great opportunity to employ the small penis rule [wikipedia.org]. slightly change the likenesses of the players from reality, and in the stats, just list their penis as 2-inches long.

      • by hairyfeet (841228) <.bassbeast1968. .at. .gmail.com.> on Friday August 02, 2013 @03:35AM (#44454501) Journal

        I just don't see why so many are the EFF on this one when it means supporting EA a company notorious for screwing EVERYBODY from the employees on up.

        Personally I'm all for this rule because i'm hoping it will open debates i think are long due, which is why are college athletes not allowed to get paid for what they do but everyone can make money off of them just like in TFA? Most of these kids will NEVER make it to the majors and if they blow out a knee on their last year their life usually ends up shit, meanwhile everybody else, the school, the groups in charge of licensing like the NCAA, even game companies like EA THEY can all make money but the kid can't? I'm sorry but that is severely fucked up.

        And let me just head those that will say "but they get paid with an education" off at the pass because I went to a "football school" and I can say pretty much all a LOT of those players are learning is how to play a better game, we've seen enough examples of players that couldn't even read the diploma they were handed to know that is a bunch off bull. So just pay the kids alright? Put it in a trust for the guy or whatever and that way if something bad happens to them and they can't play at least they'll have some money to start over, but it just ain't right that these kids are not allowed to make shit while everybody else cashes checks based on their work, its not right, its not fair, and if this ruling kills the blanket licenses the NCAA is allowed to SELL based on these kids without giving them shit in return? Then I'm damned glad the judges ruled this way, I just don't get why the EFF are for a status quo that enriches these large corps while not giving a cent to the kids whose labor is being sold.

    • Except the Supreme Court disagrees with the Ninth Circuit, see Larry Flynt versus Jerry Falwell, Hustler magazine was allowed to use a likeness of Falwell in a parody...
  • by Hatta (162192)

    Bring back Mutant League Football and this won't be a problem.

  • 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

    I guess CowboyNeal is perfectly safe then. I shudder at the prospect of this likeness.

    • by MarkvW (1037596)

      You do know that there was a real Cowboy Neal out there--a very famous one. Neal Cassady Jack Kerouac's running partner and an OG of the 'Beat Generation.'

      Maybe CowboyNeal is gonna get his ass sued by Neal Cassady's estate!

  • by Trepidity (597) <(gro.hsikcah) (ta) (todhsals-muiriled)> on Thursday August 01, 2013 @05:00PM (#44451643)

    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.

    • by Trepidity (597)

      [Reply to self]

      Oops, I linked the amendment to the California law that strengthened it, rather than the law itself. Here's the full codified law. [ca.gov]

    • by icebike (68054)

      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.

      It isn't exactly BAD either.

      First, in the present case(s), these were college kids, playing in what is nationally asserted as a non-pro setting.

      But also, it seems quite obvious that such rulings asserting some semblance of privacy are long overdue.
      The violations of all norms of behavior often goes to absolutely ridiculous extremes [huffingtonpost.com], which makes it pretty much
      a necessity for government to step in and even the playing field. Hence California's Paparazzi Law [huffingtonpost.com].

    • by lord_mike (567148)

      Most states have some sort of right of publicity legislation. It varies from state to state, but pretty much every state recognizes this right.

    • by westlake (615356)

      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.

      Because the state doesn't want the resident celebrity whose image is bankable and therefore taxable --- along with everything else he brings in.

      Sports sim fans are fanatical about rules, teams, leagues, players, stats, uniforms, stadiums and so on. What they want is the authentic game day experience. If you fake it, you lose them. That is why you pay for the rights to everything.

      It's really quite amusing to see the geek defend EA's right to a free ride.

  • by nephorm (464234) on Thursday August 01, 2013 @05:03PM (#44451677)

    This isn't a matter of parody or satire; this is EA making money from the likenesses of people they never compensated. It is akin to creating a CGI representation of an athlete or celebrity and using it in a TV commercial.

    • Why shouldn't they be able to profit from his likeness? It doesn't imply an endorsement of EA or anything else. It portrays him as he is.
      • All the same, it seems fair that if they use him in a game, he should get a cut of the profits.
      • Re: (Score:3, Informative)

        by Frobnicator (565869)

        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.

        • by Dynedain (141758)

          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.

          EA is profiting from both the likeness and the stats. They pay a licensing cost to NCAA for both. Sure anyone can redistribute the facts, but when you take the facts to build a persona and place that persona in a fictional circumsta

    • by bitt3n (941736)

      It is akin to creating a CGI representation of an athlete or celebrity and using it in a TV commercial.

      that doesn't seem like a particularly accurate comparison. one is likely to believe the CGI representation is the actual person, whereas no one playing Madden thinks he's actually controlling Tom Brady.

    • Why not? I think this is about as nonsensical as copyright and its poisonous ilk.

    • by slew (2918)

      This isn't a matter of parody or satire; this is EA making money from the likenesses of people they never compensated. It is akin to creating a CGI representation of an athlete or celebrity and using it in a TV commercial.

      I'm not sure this is that different than say the novel War and Peace making reference to dozens of real people to give it an aura of period authenticity. It's also somewhat akin to say making money from writing an unauthorized biography of some athlete or celebrity. These usually aren't parody or satire (well sometimes, but not always).

      In the games in question, EA really only used the jersey numbers and never actually used the real names of the folks, although they were superficially similar to the people

      • by nephorm (464234)

        Making reference to real world characters is one thing. But imagine if someone had tried to make the movie "Being John Malkovich" without actually hiring or getting permission from John Malkovich. Then you have the situation that the movie is being sold based upon the likeness. You have a first amendment right to talk about other people, as long as you don't say something slanderous or write something libelous. You can even make money off of what you say about those people. But if you use someone's likeness

        • by slew (2918)

          But imagine if someone had tried to make the movie "Being John Malkovich" without actually hiring or getting permission from John Malkovich. Then you have the situation that the movie is being sold based upon the likeness.

          1. AFAIK, the script was written and shopped around w/o John Malkovich's knowledge or permission. He was picked apparently because the screenwriter liked the sound of his name and his personality. Only later was the actual John Malkovich notified and convinced to sign to do the movie.
          2. The movie has literally nothing to do with John Malkovich's real life nor any non hallucinogenic fictional interpretation of anyone's actual life.

          I don't think this case is really much different than if someone made a movie

    • It is akin to creating a CGI representation of an athlete or celebrity and using it in a TV commercial.

      Even then, I think that the courts can take it too far sometimes. About twenty years ago, Samsung ran a series of ads for their line of VCRs, playing up how reliable they were, and how we would all still be using them in the future. (As I'm sure we all do)

      One of the ads can be seen here: http://joshblackman.com/blog/wp-content/uploads/2013/01/Vanna-White.jpg [joshblackman.com]

      Vanna White sued Samsung, claiming that the use of a prop robot wearing a wig and dress, and turning letters infringed on her publicity right. And she w

  • Keller sued EA claiming that the game infringed his right of publicity

    It's about the right for publicity, not the right for privacy.

    • Keller sued EA claiming that the game infringed his right of publicity

      It's about the right for publicity, not the right for privacy.

      Correct - it is against the law to use someone's likeness without getting their permission first; notable exceptions such as parody excluded.

      As it should be.

    • The right of publicity is essentially the right to control commercial use of one's name, likeness, and reputation. It is the right not to be exploited for sensationalist profit. Is the right to control what words people try to put in your mouth -- what people try to claim that you endorse or support. This is part right now that people are railing against -- the notion that profit trumps speech.

      However, there's another side to the publicity coin, and that's the right to be left alone. The right not to ha

  • You use the man because he's famous at a sport, pay the man because he's famous at a sport.

    It's not really any different from trademarks. You can blabber about Harry Potter all day. You just can't write a story then sell it without permission.

    Football games are not public events in the same sense as a fight in a street is.

    Nothing to see here, move along.

    • I agree with the sentiment of your post, but oh boy do you mix up three totally unrelated notions: right to one's own image, trademarks, and unauthorized derivative works.
    • by lord_mike (567148)

      And yet, on the same day, this same panel ruled against Jim Brown's likeness lawsuit against EA, saying that personal trademarks were not violated by EA's Madden all star team.

  • by Dynedain (141758) <[moc.nilcmynohtna] [ta] [2todhsals]> on Thursday August 01, 2013 @05:41PM (#44452049) Homepage

    I like to support the EFF, but I'm firmly in the camp of the athlete in this. Basically, collegiate athletes are unpaid, and the schools make tons of money off of their celebrity status. Then, EA swoops in and makes a contract with the private governing organization (NCAA) and gets to make even more money off of it. It's a guaranteed revenue stream as each year they release a new title with simply updated bitmaps and adjustments to values in the stats database. The NCAA gets a big fat chunk of profit (which they don't distribute). The schools also get big fat chunks of the profit (for using the school's trademarked logos and identities) but we somehow pretend that the athletes are amateurs and shouldn't be compensated beyond their education (which is little more than a rubber-stamped diploma).

    I think it's atrocious, and I'm hoping this lawsuit shakes up the system substantially. The NCAA are the ones most at risk here in the fallout. EA won't be hit nearly as hard since this isn't their only major franchise, and the schools will still be able to license they way they always have.

    Disclaimer - I'm a fan of collegiate football.

    • I just mentally changed all the words in your post to the equivalent relevant to the music industry.

      I wonder what would happen if someone made a game where they used unlicensed likenesses of bands, without using their actual music.

      This is probably off topic. :(
  • If the NCAA endorsed and has a licensing deal with EA then all the NCAA has to do is change the contract with the players: You agree that EA may use you likeness and personal statistics for the purposes of creating video game characters.

    Boom: you want to play NCAA basketball, you have to agree to this. Don't agree? don't play.

    • by bws111 (1216812)

      There is currently an antitrust lawsuit against the NCAA. That sort of move would not help their position.

  • The summary refers to "his jersey number" and "her name"

  • 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.”

    So if live football games are like their video recreations, how do I control the player with the ball? This will really help me with my fantasy league next year.

  • Don't they have to license the players "likeness" for NFL-based football video games? And doesn't the NFL make exclusive deals for video games? Isn't this the reason there aren't competing games using real players?
  • Public Figures do not have the same rights to privacy as everyone else.

    If they did, tabloids wouldn't be allowed to exist.

    Another example of how the system favours the media industry and is harsh against the computer industry and its workers.
  • This would all be far more interesting if he had a twin.

"Never ascribe to malice that which is caused by greed and ignorance." -- Cal Keegan

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