Jim Brown Appeals Case Over Whether Or Not EA Can Use His Likeness In A Video Game

from the first-amendment? dept

Wed, Jul 7th 2010 6:30pm — Mike Masnick

Back in September last year, we wrote about an important district court ruling that said video game maker EA was within its rights to use a likeness of football player Jim Brown in its video games. In the past few decades, there has been a dangerous expansion in so-called "publicity rights," like this that effectively put serious limits on what others can do. This expansion needs to be challenged, even if it seems like something so simple as a video game. Not surprisingly, however, Brown is now appealing the district court's decision to dismiss the case, saying that he wasn't able to present all the facts. We noted last year that this case would certainly be appealed, so this doesn't come as a huge surprise. Still, it should be a case worth watching if you are concerned about the expansion of concepts like publicity rights (and, on the flip side, about free expression rights).

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: jim brown, likeness, publicity rights, video games
Companies: ea

13 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

sehlat (profile), 7 Jul 2010 @ 6:56pm

This isn't "free expression rights."
This is about a corporation exploiting Mr. Brown's face and reputation to make money off both of them. He has every right to demand that they either forgo using his likeness or pay him for the privilege.
[ link to this | view in chronology ]
- Anonymous Coward, 7 Jul 2010 @ 7:03pm
  
  Re: This isn't "free expression rights."
  Uhh...why?
  [ link to this | view in chronology ]
- Anonymous Coward, 7 Jul 2010 @ 7:34pm
  
  Re: This isn't "free expression rights."
  This is not just about a corporation, is about people too.
  
  Jim Brown if it wins can stifle free speech and democracy.
  
  Next every politician has a tool to take down others that use his/her image, next anyone posting a photo of someone else will have to endure C&D letters etc.
  [ link to this | view in chronology ]
  - Anonymous Poster, 8 Jul 2010 @ 4:31am
    
    Re: Re: This isn't "free expression rights."
    "Next every politician has a tool to take down others that use his/her image"
    
    Or their words.
    
    Free speech > publicity rights any day of the week, in my opinion.
    [ link to this | view in chronology ]
trilobug, 7 Jul 2010 @ 9:14pm

EA will cave and take him out of the game. That is the easiest option, he doesn't add that much value to the product. I imagine some companies are on eggshells with these types of deals after what happened to Guitar Hero and how Activision used certain likenesses.
[ link to this | view in chronology ]
- imbrucy (profile), 8 Jul 2010 @ 5:57am
  
  Re:
  Normally I would agree, but I could see EA actually fighting this because of the long term benefits for them. Currently they license all the players in the game through the Players Association. Imagine how that situation would change if the court said they didn't need to license every player's likeness.
  [ link to this | view in chronology ]
Evan, 8 Jul 2010 @ 5:11am

Jim Brown ain't a football player
Jim Brown isn't a football player. He's a football fan who wears a dog mask.

The original case alleges that EA used his likeness (that of a football fan wearing a dog mask) in the last iteration of their Madden football series.

God forbid that a football game portray a football fan wearing a mask - note that they did not use the man's actual likeness, rather they used an image of a football fan wearing a dog mask. Does this mean that if I attend a football game wearing a dog mask, I am infringing upon Jim Brown's absolutely original idea and that I owe him something?

I don't think so.
[ link to this | view in chronology ]
- nasch (profile), 8 Jul 2010 @ 9:12am
  
  Re: Jim Brown ain't a football player
  I'm pretty sure this is the Jim Brown who is a retired NFL player.
  
  http://kotaku.com/5369702/federal-judge-rules-video-games-are-protected-expressive-works
  
  Unless you have a source that says otherwise of course.
  [ link to this | view in chronology ]
  - Evan, 9 Jul 2010 @ 6:11am
    
    Re: Re: Jim Brown ain't a football player
    Ah, well, maybe that is the case... well, there WAS a case regarding what I described in my post last year.
    
    Maybe I should pay more attention next time.
    [ link to this | view in chronology ]
Jesus, 8 Jul 2010 @ 6:10am

My likeness has been showing up everywhere lately and I've been meaning to have a talk with you guys about that.
[ link to this | view in chronology ]
Mitch Featherston, 12 Jul 2010 @ 6:01am

Hmmm...
I am not sure what "likeness" means in terms of a video game. It seems to me that if the character in the game is said to be Jim Brown, and the 3d model looks like him, then he has a legit case, I think. I am not a fan of publicity rights except in the case of unlawful use. It seems like EA would need permission from Mr Brown to portray him as a character in a game.
[ link to this | view in chronology ]
- nasch (profile), 12 Jul 2010 @ 1:39pm
  
  Re: Hmmm...
  It seems like EA would need permission from Mr Brown to portray him as a character in a game.
  
  Why? Other than because the law says so of course.
  
  I am not a fan of publicity rights except in the case of unlawful use.
  
  Isn't that just another way of saying you're a fan of publicity rights?
  [ link to this | view in chronology ]
Emrah, 22 Jul 2010 @ 11:01am

thanks
spor
[ link to this | view in chronology ]