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."
Solution to the problem (Score:3, Funny)
Ok, next patch they will transform his stats to the worst player in the game.
Re:Solution to the problem (Score:5, Insightful)
"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.
Comment removed (Score:5, Insightful)
Re: (Score:2)
Re:Solution to the problem (Score:4, Insightful)
should of
You fail.
Re: (Score:3)
And you demonstrate that you IQ is equal to your age.
Re:Solution to the problem (Score:4, Funny)
Re: Solution to the problem (Score:2)
But NCAA sports aren't "professional" that's why they can't accept any favors or outside help paying for school, etc...
So why would he expect his face in a video game?
Re: (Score:2)
How on earth can you "know" that didn't happen?
Coulda swore this was /., not Reddit.
Sooo (Score:2)
Bring back Mutant League Football and this won't be a problem.
have nfl blitz come back (Score:2)
That game was fun.
1st and 30
Well, at least one person is safe (Score:2)
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.
Re: (Score:2)
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!
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: (Score:3)
[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]
Re: (Score:2)
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].
Re: (Score:2)
Most states have some sort of right of publicity legislation. It varies from state to state, but pretty much every state recognizes this right.
Re: (Score:3)
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.
Why Should EA Profit from His Likeness? (Score:5, Insightful)
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.
Re: (Score:2)
Re: (Score:2)
Re: (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.
Re: (Score:2)
Re: (Score:2)
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.
Re: (Score:2)
Why not? I think this is about as nonsensical as copyright and its poisonous ilk.
Re: (Score:2)
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
Re: (Score:2)
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
Re: (Score:2)
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
Re: (Score:2)
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
Right for privacy!? au contraire (Score:2)
Keller sued EA claiming that the game infringed his right of publicity
It's about the right for publicity, not the right for privacy.
Re: (Score:2)
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.
Re: (Score:2)
Yes, publicity means privacy in this context. (Score:2)
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
Pay or not to pay, that is the qq. (Score:2)
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.
Re: (Score:2)
Re: (Score:2)
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.
I'm not with the EFF on this one (Score:5, Interesting)
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.
Re: (Score:2)
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.
Re: (Score:3)
The amount they get in a "free education" is far below what they could get from endorsement deals.
Furthermore, they're expected to spend all their time in training, practice, competition, etc., and are given very simple course loads which they are often just credited without doing any coursework. What is the value of the education in that scenario? When these kids break a bone as a rookie in the pro leagues, ending their career, how many say "Well at least I have a BA in > from > to fall back on?"
Henc
Re: (Score:2)
You're missing my point. Since the athletic program monopolizes their time, they rarely get much of an education. They get a diploma, but not the education that it implies. Hence, they receive very little value.
Also, the kids that don't make it to the NFL aren't getting full ride scholarships. As I said before, those kids tend to get better degrees and a better education because they're partially responsibl
Re: (Score:2)
http://www.bloomberg.com/news/2012-11-14/bureaucrats-paid-250-000-feed-outcry-over-college-costs.html [bloomberg.com]
Re: I'm not with the EFF on this one (Score:3)
Do students pay 1099 or W2 and other EMPLOYMENT TAXES on their full scholarships??? No? Then they are not PAID and the NCAA is dodging a serious amount of Employer Taxes that the IRS should collect!
Re: (Score:2)
NCAA is being sued in this as well and the damages could be astronomic for them.
Re: (Score:2)
And I don't think it's a bad ruling and I think the EFF is putting up a strawman argument. I think Zuckerburg should have seen compensation for The Social Network. It's clearly based on him, makes up things about him, and
Now I think he was smart in not making too much stink about it (which could have backfired in his IPO scheme and damaged the Facebook brand), but if he did, I think he would have been in the right, as much as I may not care for him personally.
In my opinion, reporting, repeating, or declarin
Re: (Score:2)
Why should it be any different because you're using real people instead of fictitious characters?
What if the reader doesn't think that using fictional characters should result in someone getting punished? In that case, your question kind of becomes pointless.
Such a reader is in the minority (Score:2)
What if the reader doesn't think that using fictional characters should result in someone getting punished?
Until 51 percent of readers agree with this hypothetical reader and take this agreement to the voting booth, copyright continues to exist as the statius quo.
Re: (Score:2)
Just like the TSA and a host of other garbage, then. I guess as long as we have all this other garbage, we should just keep eliminating more and more rights rather than trying to put a stop to the process.
NCAA contract (Score:2)
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.
Re: (Score:2)
There is currently an antitrust lawsuit against the NCAA. That sort of move would not help their position.
Is Sam Keller transgender? (Score:2)
The summary refers to "his jersey number" and "her name"
How do I control players in a live game? (Score:2)
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.
But But but... (Score:2)
Anyone heard of Tabloids? (Score:2)
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.
Indenticals and clones.... (Score:2)
Re:some are more equal than others (Score:5, Informative)
Isn't that Animal Farm?
Re:some are more equal than others (Score:4, Funny)
Re:some are more equal than others (Score:5, Funny)
Oceania has always been at war with Eastasia.
Re: (Score:3)
Isn't that Animal Farm
To be fair, I don't recall Animal Farm specifying in what year it took place. Maybe it also took place in the year 1984, albeit in an alternative dimension where animals talked and Oceana wasn't at war with Eastasia.
Pretty sure he meant the quote, "Some are more equal than others," was from Animal Farm, not the year that Animal Farm took place.
Re: (Score:2)
Isn't that Animal Farm?
Yes it is, because the greedy pigs are in charge. Besides, if the celebrities didn't want fame and fortune, then they shouldn't have stuck their faces all over the TV and movie screens.
Re: some are more equal than others (Score:4, Informative)
Probably because you're quoting another Orwell work, animal farm.
Re: (Score:3)
yeah and this dude is.. .. a publicly playing dude and the stats are about his public plays, no? I mean, they probably took 'em out of some stats magazine or some shit like that.
Re:some are more equal than others (Score:4, Insightful)
A Jersey # and some playing stats, licensed from the NCAA. It's not like they secretly motion captured him with his girlfriend and 'hot chocolated' them.
Re: some are more equal than others (Score:2)
The jersey and number and stats are generally from taxpayer funded PUBLIC schools... But EA can't use THOSE without license... Just watch how fast they get sued.
The NCAA doesn't have rights to player images because the players are legally amateurs. So otherwise the individual players could have their own licensing for their images and make money!!! But the NCAA doesn't allow PLAYERS to use that right in their league and the NCAA hasn't sold that to EA.
Re:Does this apply to all athletes? (Score:4, Informative)
Re: (Score:2)
that's what the unions are for. It's not going to be hard to make a game, but the athletes will be paid for their likeness.
I'm not sure how I feel about this. I don't think that a famous person should have their likeness used for anything any commercial venture wants to use it for. What if they made a baby-killing simulator and used his likeness. Shouldn't he be able to stop that?
With regards to biographies, it seems like that should fall under news/reporting and be excepted.
Hrmm.. I don't know.
Re: (Score:2)
Re: (Score:2)
What if they made a baby-killing simulator and used his likeness. Shouldn't he be able to stop that?
That would be the reasonable time for defamation law
Re: (Score:3, Insightful)
Why is this a problem? You are using their likeness to generate income without their consent or compensation.
But they're not. (Score:5, Insightful)
They're using a jersey number assigned by the NCAA that will be reused for other players later, and a set of stats collected by the NCAA.
This won't last long, NCAA will just amend their terms so that all athletes must give up likeness rights to compete.
Re: Does this apply to all athletes? (Score:2)
The NFL makes them sign over every detail the lawyers can think of...
The NCAA is amature, so under that definition PLAYERS don't have the right to exercise their INDIVIDUAL image rights under NCAA rules. Because they are "amature" the NCAA probably can't force the players to sign those rights over to them.. Even player names are probably pushing the NCAA's use of "amature". The NCAA represents the SCHOOL because the school owns the team, mascots, stadiums, etc.. But not the STUDENT images.
Re: (Score:2)
So, now anyone can make a video game featuring pro athletes?
These athletes weren't PRO, they were still in college. (Perhaps on a Football scholarship).
But if accepting a scholarship opens your life to every public use under the sun, then we've not only slipped down that slippery slope, we've hit rock bottom.
So its not the same as a pro player being paid to perform.
If it was only the Ninth, I wouldn't worry, but the Third Circuit found essentially the exact same thing for a different player.
Still I find it odd, that this Court, or any Court, asserting any right to p
Not bribing (Score:5, Insightful)
More like now nobody can without bribing all the players.
How is it "bribing" a player to give them money so in return you have their permission to use their likeness?
If someone created a game that used your likeness wouldn't you think you should at least be asked permission to do so?
Re:Not bribing (Score:4, Insightful)
Re:Not bribing (Score:4, Insightful)
If I was awesome in the game, I would be happy that I'm being portrayed as awesome to the world. If I was portrayed in a neutral light, I wouldn't have a reason to care all that much. If I was potrayed as lame, then it would obviously be some kind of parody or other transformation, so while I may be unhappy, I wouldn't have any just complaint.
Easy for some nobody, no-name neckbeard to say.
However, if your fiscal security was based on your own likeness, you'd probably be singing a different tune.
Re:Not bribing (Score:5, Insightful)
Re: (Score:2)
If someone was using your name to sell their product, doesn't that imply that you support or endorse their product? Someone must ask for permission to legally (legitimately?) make the claim that you support or endorse their product. The vast majority of people believe this, and the law revolves around what "reasonable people" would understand.
In this case, even though the name was stripped out, the player is still clearly and obviously identifiable in the game. Someone who played the game before watching th
Re: (Score:3)
Re: (Score:3)
If someone was using your name to sell their product, doesn't that imply that you support or endorse their product?
Not to me.
The vast majority of people believe this, and the law revolves around what "reasonable people" would understand.
I don't think most people are "reasonable" (since it's subjective and all) at all, but even if they were, I don't think most people understand the law
Re: (Score:2)
Re: (Score:2)
Their fiscal security is based on their sports ability (both skill and fitness to perform), not their likeness. They aren't models.
Get a bad injury while playing NCAA ball, no pro career, no matter how good you WERE. Get injured badly in the pros, sorry, no more money (depends on your contract though, seems A-Rod can get a lifetime ban and still make over $60 million...).
If modelling was their career choice it would be different, that is truly basing fiscal security on one's likeness. T'would be a crappy
Re: (Score:3)
Their fiscal security is based on their sports ability (both skill and fitness to perform), not their likeness. They aren't models.
When their likeness is used for profit, they very much are models, if not in title.
Get a bad injury while playing NCAA ball, no pro career, no matter how good you WERE.
Which has fuck-all to do with the fact that EA is making money off this dude's likeness, without his permission, and giving him precisely dick in exchange.
Not about being awesome (Score:2)
Re: (Score:2)
Re:Not bribing (Score:5, Insightful)
If someone created a game that used your likeness wouldn't you think you should at least be asked permission to do so?
I might prefer to be asked for permission first, but I don't believe that censorship is the answer or that I should be able to stop them from arranging data in a certain way.
Amateurism rules (Score:3, Interesting)
How is it "bribing" a player to give them money so in return you have their permission to use their likeness?
That depends on whether accepting such a "bribe" would cost a student athlete his amateur status and thus his eligibility.
Re: (Score:3)
You would simply go to the players' union and ask for permission. All the players in the union will have pre-agreed to allow the union to bargain for the palyers as a group. That's what unions do.
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:Does this apply to all athletes? (Score:4, Insightful)
Unions (theoretically) exist to protect the employees against the management through collective bargaining.
Unfortunately in the case of collegiate football, NCAA is the management, and the Universities are the staffing agencies, EA is a 3rd party buying the product, and no-one is representing the interests of the players.
Re: (Score:2)
EA is a 3rd party buying the product,
EA is the third party usurping the product and repackaging it to make a profit.
Re: (Score:2)
No, they bought the product from the NCAA.
Re: (Score:2)
Re:Does this apply to all athletes? (Score:4, Insightful)
Exactly the point and why their is a lawsuit against both EA and the NCAA.
Re: (Score:2)
The NCAA does its best to make sure it enriches itself and the colleges that participate in their competitions without giving the athletes a dime. The kid's output is what brings in all that revenue, and it's not that they are not getting their fair share: They are not getting a share, at all.
If you look at their balance sheets, you'll find that some universities are not places of learning that happen to host sports: They are professional sports franchises that happen to provide some higher education for co
Re: (Score:2)
IMDB publishes public information about works of entertainment. NCAA Football is a fictional representation based on works of entertainment.
IMDB is fine to publish factual items about "The Phantom Menace", but they can't publish a video game based on the same thing.
It will be interesting to see how this might affect fantasy sports games, but I suppose they differ in the simple fact that the video game creates an alternate and fictional world where these people exist, rather than simply taking the public s
Re: (Score:2)
Look, EA deserves far worse than this to happen to them. I hate them with a fiery passion, but they are actually right on this.
Re: (Score:3)
this is a video game company making a realistic football video game.
So... taking all the college players stats for the last 50 years, randomly assiging them jersey numbers, skin tones, eye colors, heights, and phsyiques would result in a realistic player pool from which to create a realistic football game.
Why exactly does the jersey number, physical profile and football stats all need to line up to a very particular and easily identifiable individuals?
That's not "realistic" football players, that's "real
Re: (Score:2)
The players do get a cut of the money that the NCAA makes on the games. They not only get scholarships, but they get new facilities, equipment, training staff, etc. The money that comes from big name programs goes right back into big name programs. Very few athletic programs actually make a profit. Most lose money. Why? Well, the non-revenue sports such as women's volleyball, crew, soccer, etc. can get very expensive, too, and football and/or basketball subsidize those sports. In many schools, even f
Re: (Score:2)
Next thing you know the NFL will be suing them for using the same rules as the "official" game though, "want to use a 120 yard field & six points per touchdown? Fork over $1 million"
Horseshit. The game of football, using more or less the same "official" rules, predates the existence of the NFL. They would only have a claim over any NFL-specific rules, if even that (with the whole "can't copyright essential game elements, only expressive artwork" deal, they might not have a leg if you make a "Pro Football 2014" with every rule the same as the NFL down to a T, as long as you don't mention the NFL or use any trademarked or copyrighted material while doing so).
Tetris v. Xio (Score:4, Interesting)
the whole "can't copyright essential game elements, only expressive artwork" deal
Tell that to Xio Software, who got successfully sued by The Tetris Company [slashdot.org] for making a block-stacking game that uses pieces made of four square blocks.
Re: (Score:2)
Since the judges said that the athletes could not be exploited like that I find it unlikely that they would think it 'is all good'. Did you have a point, or did you just fail reading?