Columnist Accuses EA Of 'Identity Theft' For Using Player Likenesses
from the doesn't-pass-the-laugh-test dept
Reader LCD points us to a piece in the New York Daily News that is so utterly stupid I don't want to spend much time on it—but it deserves (nay, requires) a brief pause for ridicule. According to the column by Andrea Tantaros, who almost exclusively covers politics and should probably stick to that, EA's use of football players' likenesses in video games (a topic we've covered before) is akin to identity theft:
Identity theft is a huge problem that affects millions of Americans each year. If a crook stole your most personal information and used it to make a buck, you'd be furious.
And, of course, that's illegal. But if you are a corporation, you can steal all the identities you want for profit.
That's what video game company Electronic Arts is doing when it deliberately exploits the likeness of the players it uses in popular video games. And it doesn't pay them a cent.
Uh-huh. Identify theft is about serious criminal fraud, not the violation of publicity rights that may or may not actually exist. To accuse EA of identity theft is hyperbole in the extreme, and makes it hard to take the remainder of the column seriously.
As for that remainder, it makes a little bit of effort to address the real issue, but Tantaros simply takes it for granted that everyone has some sort of innate human right to control any and all usages of their likeness. That's not at all the case, and while there is room for some reasonable debate on the merits of publicity rights, it isn't going to stem from frivolous accusations of identity theft.
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Filed Under: identity theft, likeness, video games
Companies: ea
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If you think, even for a picosecond, that EA does not have very elaborate licensing deals with these notoriously litigious organizations, you are braindead.
In fact, a single, solitary google search for "EA NFL License" reveals that EA is the *exclusive* licensee of NFL video game rights.
The brain-deadedness of this assertion makes me question whether Ms. Tantaros is even qualified to write politics, much less straying into legal commentary.
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Response to: Anonymous Coward on Mar 7th, 2012 @ 7:24am
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and further more
Did you know that taking pictures of someone even steals their SOUL? I know, because I read about it.
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This isn't even true. EA pays the NFL for a license to produce NFL-branded video games. The NFL then pays the players through the revenue sharing that's in place via the collective bargaining agreement.
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Google/search engines: use before saying something you don't have a clue about.
Considering an awful lot of ppl nowadays have replaced their brains with Google search system...
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Contract???
The right of publicity is a strange law, and I sort of understand it in terms of living people wanting to protect themselves from corporations using their likeness w/o consent... WOULD YOU LIKE YOUR PICTURE TO BE ON A BOX OF WHEATIES w/o being paid, or at least being asked? Where the law falls apart for me is right of publicity and dead people. The estate of James Dean racks up a lot of money every year from a really crackpot concept that the likeness of a dead celebrity can be "PROTECTED" and licensed. This is totally stupid, and it needs to end. I should be able to print tee shirts with James Dean's face on it all day and not be threatened with a lawsuit.
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And even though the NFL has the NFLPA it is still a pretty raw deal that a game company can make a bajillion dollars using a player and that player doesn't see a dime extra - hell he might even be out of a job if his team cuts him, etc.
It's not identify theft per se, but I think Techdirt is clearly avoiding the obvious issue because Tantaros is a conservative figure and they don't like her. Yeah, she used the wrong words, but it is a very real issue.
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And, of course, that's illegal. But if you are a corporation, you can steal all the identities you want for profit.
That's not just using the wrong word, that's just being a complete idiot
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If college athletes were paid, they'd be classified as "professionals" and ineligible to play in college sports.
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They got a shot to progress in what they wanted to do as a chosen profession, which is about all college can give you in any form.
Let's not pretend they're getting nothing out of it is all I'm saying, because they're getting better than what they might have had otherwise.
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No, boy, it would be like a business major (who hasn't yet graduated) working for a successful nulti-million dollar corporation without salary...
It's called an internship.
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It's called business. The players are compensated according to their abilities and the demand in the market for them, plain and simple.
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It's not my/yours/anyone's fault if someone hands them a full ride to college and their choice is to waste that opportunity.
Few of us feel bad about the lottery winner that blows all his money and ends up right back where they started if not worse.
Why would we shed a tear for these guys?
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As I said at the end of the post, I don't think that publicity rights are categorically wrong - though I do think they are open to widespread abuse and trolling if not handled correctly.
But we can't even come close to having a productive conversation about that if defenders are going to spout ridiculousness like this - claiming that it's "identity theft" and that everyone has an automatic right to control every use of their likeness. That is a) not even close to what the law says and b) really, plainly obviously stupid if you think about it for more than ten seconds.
If you are interested in a more in-depth look at publicity rights, check out this post:
http://www.techdirt.com/articles/20101020/03475811495/the-rise-of-a-new-intellectual-property -category-ripe-for-trolling-publicity-rights.shtml
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"it is still a pretty raw deal that a game company can make a bajillion dollars using a player and that player doesn't see a dime extra - hell he might even be out of a job if his team cuts him, etc"
1. It is not a raw deal for a player that is already making tons of money for playing the sport he loves. The idea that he is entitled to extra money for literally doing nothing is kind of absurd. Let's not even get into the whole morality of publicity rights debate -- the video game companies can get away with using player likenesses *without paying a dime* and this is legal, as it should be. That there is official sponsorship is pure icing for the NFL *and* EA, as they both make more money.
2. If you are complaining about the unfairness of bargaining leverage between players in major league sports and the leagues themselves, (a) cry me a river (b) get in line (c) it is completely un-fucking-related to the issue of whether there is an objective moral obligation to remunerate sports players for use of their likeness in a video game. By the way, I don't think there is such an obligation.
So, no. It has fucking nothing to do with Tantaros being conservative.
It has to do with the entire argument being a mix of idiotic and irrelevant. Irreliotic.™†
† Use of Irreleiotic without attribution to IP Lawyer constitutes a violation of Trademark Law, and will be prosecuted to the fullest extent of the law.
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I don't feel sorry for pro players because they make lots of money, but this isn't about how rich they are it's about what's fair. Of course they usually sign this types of rights away in the nfl, but it's a totally different story in college where the abuse blatant and rampant. College coaches make millions of dollars and players get a crappy degree that means nothing and maybe a shot at the nfl if they're good enough.
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EA pays licensing and other fees to the NFL. NFL CBA has a revenue sharing agreement with the players. Licensing fees fall into the revenue column. Ergo, players are being paid for the use of their likeness.
Please take the tin foil off your head. It is interfering with your abilities at reading comprehension.
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If the agency/company I had signed a contract with allowed you to do so (as the NCAA does with college players, and the NFL and all other professional sports leagues do with pro players) then there's nothing I could do about it, boy.
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I don't know quite how one uses an image 'on a business' other than perhaps, as a billboard, but this schoolyard view of sponsorship rights (also known as the Right of Publicity for those with their textbooks out) deserves an answer in two parts, as you clearly missed precisely the point I'm trying to make.
1. Use of my image, qua image, is 100% okay by me. Go fucking hogwild. Put me up on billboards, in magazines, in newspapers. I absolutely would not feel entitled to make money. I simply wouldn't. Nor should you.
2. There is a huge, huge difference between using someone's likeness *and implying sponsorship.* If someone was using my likeness to promote their brand of contracts, I would absolutely be pissed if they did so without my permission. If my picture, however, was incidentally used on the cover of a video game (presumably about handsome people) I wouldn't give a flying fuck. Now, if the video game was about superlawyers, use of my image would probably imply sponsorship. This, again, would be a problem. If you cannot distinguish between use of images as sponsorship and use of images as images, because they convey a set of objective facts about the world as represented visually, I cannot help you. Talk to your priest.
The fact of the matter is that it is an objective fact that pro athletes play in pro sports, so using their images in a video game about that sport should not -- and is not, please note this part, such use would NOT be covered by IP law -- be a use that is protectable under intellectual property law, any more than you have to pay Angela Merkel for use of her image in reporting about Germany or paying Tiger Woods for use of his picture in an article about golf. I will fully cede that the player on the cover of a video game that is about the sport he plays is a sponsorship type use of that image. Using his image *in the game itself*, however, is not.
"I don't feel sorry for pro players because they make lots of money, but this isn't about how rich they are it's about what's fair."
I do not, in any conceivable sense of the word, think that it is 'fair' to pay someone simply for the use of their image. They have not incurred any personal cost, they have not endured any labor, no tangible good has been taken from them. I do, however, fully support the idea that people should retain the right to control the use of their image in ways that imply they approve of or endorse that product. Full stop. The two issues are wholly and utterly unrelated. Control of sponsorship has nothing to do with 'getting paid.' It has to do with falsely attributing approval, the same way that putting a logo on a product indicates the manufacturer, which is a guarantee of quality / source. So, whereas trademark is based on consumer protection, sponsorship / rights of publicity is a dual balance between consumer protection (the ability to not pass off goods as if they had been approved by people who do not approve) and defamation (falsely attributing statements to persons, in this case, sponsorship). If people want remuneration to be a part of that control mechanism, that is an entirely separate issue, and one I have absolutely no problem with. Go with god. That concept has the blessing of common sense, intellectual property law and a sense of fairness that is not based on the technologically absurd and impossibly reductionist proposition that all uses of people's images need to be both rights-cleared and paid for.
It is clear you believe in the entitlement theory of intellectual property. As someone who clearly knows more about intellectual property than you do, let me just say I do not.
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2. It's clear that you are being intellectually dishonest and are complicating the issue with legal nonsensee in order to sound right. Your not. You're lying when you say you won't be upset if I take your image without your permission and use it for my own public, personal gain. It's BS and there really is no point trying to discuss anything with you.
The moment I take your image, your wife's image, your daughter's image and use it to make money without giving you a dime you will take me to court. You are lying if you say otherwise.
Next time when you try to discuss something try to sound less full of yourself and self important. MAybe then you will past the smell test. SMH.
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A football player being used in a video game is simply a recreation of a factual situation. This person plays football in the real world, now he also "plays" football in a video game.
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a) you seem to be sane.
b) you have a sense of humour.
If there isn't already, there should probably be some rights for people who make their living from their image, e.g. models, probably actors as well. But, as sportsmen earn their living from their skills, not their faces, I'd say they're fair game for use in a game.
I had a similar issue on the last football game I made, but with rights to use footballers names. I never did get a clear answer, and ended up just making up names close to the famous ones.
Also, having worked for EA on some of their sports titles such as FIFA Soccer, I can categorically state that EA certainly pays a shitload to the agencies involved, such as FIFA.
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Of course not. That's ridiculous. It's not like having a face represents a lot of effort or investment on my part. As long as you try to let me know before the commercial starts airing I don't see the problem.
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Yeah and that is an issue with the colleges refusing to allow their players to accept any money and then contracting their likeness to the games companies and accepting the checks on their behalf.
The games company's just want to use the players, they don't care who they have to pay. Unfortunately for the actual players the organisations they play for claim all the money and forbid them for getting any compensation for it.
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Agreed.
The game company is following the law and paying a license fee to the organization that legally holds the rights.
Now, how that organization that currently holds the rights acquired them, and what (or who) they pay is another matter entirely.
But Electronic Arts is legally, morally, and ethically free and clear.
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Andrea Tantaros for President
Andrea you would get my vote for sure! No wonder you write about politics.
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College players do not have the same benefit, as they lose their scholarships if they make money off playing sports. While I agree that comparing EA's use of likeness to identify theft is stupid, the article makes an unintentionally valid point, in that college players continue to get the short end of the stick of college sports, living in a practically slave-labor economy where they see nearly 0% return on their investment of blood, sweat, and tears. If the college players were allowed to have a licensing deal with EA, this wouldn't even be an issue at all.
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When will we as a society wake up and realize that nobody wants to play football!!! It's all slavery!!!
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Then the players shouldn't be playing college football.
That way, they won't be taken advantage of by colleges.
Of course, the players probably won't be seen by pro scouts, then signed by pro teams, but hey, that's the way it goes!
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Then they should stop playing football and go and and get a job like the rest of us. Then they can get the short end of the stick of the real world instead, living in a practically slave-labor economy, like the rest of us. It's entirely their choice.
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Why would the NCAA "care"?
They're the ones who licensed the players' images to Electronic Arts!
They not only condone "EAs practice", they encouraged it and collected a hefty fee!
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Some players will not get that benefit, but its incredible to assume these players receive no benefit. They also have to be scholastically eligible to play, and thus, they earn an education. If they are a scholarship player, that is money in the pocket. If they are a walk-on, they could be the next big player for the team.
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It's like calling Copyright Infringement theft. It's dishonest and diverts people's attention from the real problem. It cloud's people's minds with scary words and makes them shut down their brain and just react emotionally.
Bad author. But, then again, she must've picked the habit of using weasel words from all the political coverage she did (does?).
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That's all I needed to see: a big red flag that the topic at hand is either inflammatory or ill-informed. Too many things in life to get agitated over; Daily News drivel ought not be one of them.
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small typo
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The Daily News is Clueless
Well, the link on the original page to register took me to another Daily News page with a banner ad for evony. No registration form. I thought, that is odd, lets try this again. Same result. I tried the link in the header to register, now we are cooking!
No, I have to setup a secret question, secret answer, username ( not email ), zip code, country, gender and year of birth - all required in addition to email, first and last name. Plus I am solicited for info on my industry, job title and income?
Or I can link my social network accounts to their site.
Right. The columnist being clueless about technology is a mere reflection of the clueless registration of the Daily News.
All that just so I can leave a comment?
Wow.
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Reading her bio, I know understand what she is.
YASD - Yet Another SpinDoctor.
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I proceeded to obtain a drivers license at the DMV, a copy of her original birth certificate, withdrew $100 from her account at a local bank, and opened several other shell accounts and corporations in her name.
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