U.S. court limits how art can imitate life


Gamers play an EA Sports game at E3 (Frederic J. Brown / AFP via Getty Images)

Does a college athlete have the right to control how he is represented in a video game? At first glance, the answer may seem like an obvious yes. But that position raises some major issues about freedom of expression and how realistic representations can be used in all forms of art.

The U.S. Court of Appeals for the 9th Circuit ruled Wednesday that the First Amendment doesn't protect the right of Electronic Arts to use unlicensed depictions of the players in the NCAA Football video game series. Former college athlete Sam Keller is one of several athletes pursuing a class action suit against EA and NCAA under California right-of-publicity laws for a cut of the profits from the series.

For EA's Madden NFL video game series, the company has a license with both the NFL and with the NFL player's union. But for its college series, EA just has a deal with the NCAA.

The games include digital avatars of thousands of college players that use their playing stats, jersey number, biographical details and basically everything up to their actual name and likeness. A former EA employer testified in a related anti-trust case launched by former college athlete Ed O’Bannon that EA “tried to make the players perform as their real life counterparts, short of their name and likeness.”

The case is tricky because NCAA rules prohibit student athletes from participating in endorsement deals or licensing themselves in any way. But the NCAA regularly licenses its brand out along with the usage of things personally identified with players such as their jersey numbers, raking in a lot of money for the association and university athletic programs.

Travis Waldron argues that even when those products don't use the names of players, they are profiting from the talents of uncompensated student athletes. He has a point. Gamers don't buy the latest NCAA game because the gameplay is radically innovative; they want to be playing with their team's current roster.

Two-thirds of a three-judge panel ruled that the games' use of player likenesses was not "transformative" because they "literally recreated Keller in the very setting in which he had achieved renown," and in doing so failed to create new art in their depiction.

But that logic seems to have troubling implications for artistic freedom. Does that mean, as the Electronic Frontier Foundation (EFF) suggests, that Mark Zuckerberg could sue the filmmakers behind "The Social Network"? After all, it depicts Zuckerberg in the very setting (starting Facebook) in which he achieved renown.

That's almost exactly what a dissent from Judge Sidney Thomas argues, saying the "logical consequence of the majority view is that all realistic depictions of actual persons, no matter how incidental, are protected by a state law right of publicity regardless of the creative context" and worrying the ruling "jeopardizes the creative use of historic figures in motion pictures, books, and sound recordings."

To make things more confusing, on Wednesday the same judicial panel dismissed a trademark suit by Hall of Famer Jim Brown about the use of his likeness in the Madden video game series without consent or compensation. The case was similar, but because it was a trademark suit rather than a right to publicity suit, Brown needed to prove his inclusion in the game suggested he endorsed the product.

Andrea Peterson covers technology policy for The Washington Post, with an emphasis on cybersecurity, consumer privacy, transparency, surveillance and open government.
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