Judge Says Video Games Can Use Sports Stars Likenesses

from the protected-by-the-first-amendment dept

Wed, Sep 30th 2009 5:17pm — Mike Masnick

Earlier court rulings have found that sports leagues cannot stop videos games from using player stats, since that's factual information. But, what about player likenesses? Many had assumed that was still forbidden without a license, but a new court ruling has found otherwise. Former football player Jim Brown had sued EA, claiming the use of his likeness violated his rights, but a district court judge has dismissed the case, saying that video games are "expressive works, akin to an expressive painting that depicts celebrity athletes of past and present in a realistic sporting environment," and thus are protected by the First Amendment. The case will almost certainly be appealed, but for now, it's a big win for video game makers and their ability to use player likenesses in their games without licensing them first.

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Filed Under: copyright, first amendment, likeness, publicity rights, sports stars, video games
Companies: ea

12 Comments

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slackr (profile), 30 Sep 2009 @ 5:53pm

3D modelling
I'm guessing that this really is only going to apply for the has-been athletes. My understanding is that most popular sports games who want accurate current hot-property athlete likenesses pay to get them using services like 3D scanning/modelling.
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slackr (profile), 30 Sep 2009 @ 5:59pm

Hmmm
I wonder if this screws Courtney Love's recent argument about the Guitar Hero use of the deceased Kurt Cobain?
http://techdirt.com/articles/20090910/1713046154.shtml
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MBraedley (profile), 30 Sep 2009 @ 6:31pm

What about the UFC games? Didn't the owner say he would kick out anyone who had their likeness in the game? Or maybe he was a little more precise and said licensed their likeness.

I also assume there'll be international issues to deal with as well, since most NFL players are American, whereas in the NHL and MLB, you have a significant number of players from other countries. What happens if an individuals right to their likeness (whatever that means) in their country trumps an equivalent to the first amendment?
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Anonymous Coward, 30 Sep 2009 @ 7:31pm

Don't think so
It should win on appeal. At least as presented in the summary, this really doesn't seem fair.

The image of a celebrity is a large part of their "product". Andy Warhol demonstrated this point (to his credit).

Coming up with a game concept may be artistic (although, the concept of "sports games" can not in any way still be regarded as artistic. It's been done => not art. Art is novel, that's why we value it and protect it's representative output through copyright).

Making a game is more of a craftsmanship. Not to say their isn't art in craft. But if you're repeating it, it's no longer art. Art was when someone came up with a novel technique in the craft. A cool "hack" is art. But once it's reused, it's not art any more.

Packaging a game for mass market is not artistic. It's a business. Again, an initial business concept may have been "art". But these days, making a sports themed video game and packaging it up for the mass retail market doesn't even come close to art.
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scarr (profile), 30 Sep 2009 @ 7:45pm

Re: Don't think so
Your definition of art is strange. By your logic, painting and sculpting marble aren't novel techniques in the craft, and haven't been reused for a long while, and thus wouldn't be art. Nor most blues music.
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Anonymous Coward, 30 Sep 2009 @ 8:16pm

Re: Don't think so
Then there's nothing artistic about making a sculpture of a person: it's been done before. Or a bust. On the other hand, a sculpture of an exploding toilet is art.
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Cyanid Pontifex (profile), 30 Sep 2009 @ 9:26pm

What's interesting is that EA will lose either way. If the case is appealed and the plaintiff wins, they have to pay out. If the case isn't, they lose some of their exclusivity.
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Anonymous Coward, 30 Sep 2009 @ 11:57pm

interesting precident
If the appeal loses this really creates an interesting precedent. What happens when 3D graphics are seriously realistic... they can start putting actors into movies without paying for them. Movies are arguably far more artistic than a sports game.
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Anonymous Coward, 1 Oct 2009 @ 5:32am

Re: Don't think so
“The most important thing in art is the frame. For painting: literally; for other arts: figuratively - because, without this humble appliance, you can't know where The Art stops and The Real World begins. You have to put a "box" around it because otherwise, what is that shit on the wall?”
Frank Zappa

"Art is making something out of nothing and selling it."
Frank Zappa

Ahhh, Frank knew. AC please try better. Start with 'credible' and then move onto 'bullshit'. When you start with 'bullshit' you're just a joke.
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MCR, 1 Oct 2009 @ 5:48am

Current Stars
Current, and even some past players, are licensed through the league itself and the players respective unions. EA has to get these licenses in order to use the team franchises (ie what's the point in having Peyton Manning's likeness if he's not playing for the Colts).

Only players not represented by the Union, or players who expressly request their actual name be left out of said game (think MJ in the old NBA live franchise) can avoid being in the game. This court ruling sounds like it overrides the likeness aspect, but I'm still pretty sure they couldn't use the players name (as most famous athletes name's are TM'd)
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Sergio, 1 Oct 2009 @ 7:26am

Does this apply to everyone?
I'm looking forward to playing as Sarah Palin in a Helicopter Hunting Simulator and knowing she won't get a dime for it!
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ajgajg1134 (profile), 1 Oct 2009 @ 2:34pm

Finally video games triumph, but hopefully no longer
I completely agree with the ruling in this case, and feel that this will be a great win for almost the entire video game industry. However, the video game industry itself has some problems. DRM? I mean COME ON! I just wish they could do what Techdirt is almost always recommending to the music industry.
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