Appeals Court Doesn't Think Putting Historical Figures In Video Games Is Free Speech
from the historical-history dept
Everyone knew this was coming. With the expansion of publicity rights that is currently ongoing, and more specifically after the case between former NCAA players and Electronic Arts that effectively killed off college sports video games, it was only a matter of time before former professional players turned their sights on the Madden franchise. Now that a few former NFL players have filed a publicity rights suit against EA, we again will see the First Amendment go up against publicity rights. So far, for free speech advocates and champions of video games being art, it isn't going well.
Some background. In the NCAA case, former athletes successfully argued that the NCAA forcing them to sign away the rights to their likenesses in order to play their respective sports deprived those athletes of the ability to license their likeness to other game-makers. It's an important distinction, because in the case of former NFL players no longer affiliated with the players' union, no such signing away of rights ever occurred. Instead, this is a simple battle directly between Electronic Arts, a game producer, and former players over the rights to use their likeness. In the Madden franchise, for many years the games have included historical teams, such as championship winning or otherwise notable teams, which have included nameless and faceless but otherwise faithfully reproduced historical athletes from those teams. Gamers can play with those teams against other historical teams, creating something of a historical fiction episode of professional sports. Historical fiction, of course, is protected by the first amendment as art. According to a recent ruling by the 9th U.S. Circuit Court of Appeals, however, video games are to be treated differently.
The case against EA was brought by Michael Davis and Vince Ferragamo, both retired NFL players whose likenesses were reproduced (sans name or picture) in Madden's historical teams within the games. EA sought to have the case thrown out with an anti-SLAPP motion, arguing that it would be likely to win on several grounds. Included in those grounds was that the use of historical players' likenesses was transformative, that the publication of their game was in the public interest, and that its use of likenesses was artistically relevant to the game as a whole. The court didn't buy any of those arguments, most of which I understand, although the argument that the use of historical players in the game is transformative is at least an interesting one. But it's on the final argument EA made that the court seemed to go sideways in its logic. As reported by The Hollywood Reporter:
Finally, EA argued that the avatars were merely an incidental use. If the latest case makes its mark as precedent, it might be here. The 9th Circuit weighs the value, significance, purpose and duration of the use of the former players and comes away with a sense that the players' likenesses are worth something. Judge Fisher decides that "the former players’ likenesses have unique value and contribute to the commercial value of Madden NFL" and that "the former players’ likenesses are featured prominently in a manner that is substantially related to the main purpose and subject of Madden NFL."From the ruling:
EA advances one additional argument in this appeal – its use of former players’ likenesses is protected under the First Amendment as “incidental use.” We disagree. We hold EA’s use of the former players’ likenesses is not incidental, because it is central to EA’s main commercial purpose – to create a realistic virtual simulation of football games involving current and former NFL teams.Except that this seems to be entirely too simplistic an approach by the court and doesn't treat the game as having artistic value. Other genres of art don't typically suffer under this kind of distinction. Historical fiction seems like the logical place to point, in which public figures of notoriety are re-imagined in fictional accounts. Why should that use be different than historical players being used to play football against teams they never played against? What makes historical fiction okay, but historical games not? In its ruling, the court never really answers this question, instead going back to the NCAA case over and over again and asserting that the questions raised by EA in this case have already been decided.
As a result, the 9th Circuit affirms the lower court's decision to deny EA's motion to strike. The opinion not only reiterates what the same appellate circuit said last year in a similar case involving college athletes — something that could be disconcerting to TV broadcasters who are now facing legal heat — but also underscores some of the ways that publicity rights can gain an edge over First Amendment rights, best illustrated up until now by No Doubt singer Gwen Stefani's victory over a game that used her avatar.But then why should this case be different than the one brought by Manuel Noriega, where his likeness was used in Activision's Call of Duty game without his permission. In that case, in a different jurisdiction, the court ruled that the First Amendment outweighed any publicity rights Noriega may have had. If video games are art, and they most certainly are, than former NFL players objecting to the historical fiction that comes about from EA including historical teams in its games ought be outweighed as well on First Amendment grounds. The state laws are different, but the protection of the First Amendment is not. And keep in mind, the game only includes basic info about these players that are historically accurate for the time of the team represented (height, weight, age of the player at the time they were on the team). No names or pictures were included. And the court was well aware of the protection video games are supposed to have as artistic endeavors.
The plaintiffs concede that their suit arises from an act by EA in furtherance of its right of free speech under the First Amendment. Indeed, “[v]ideo games are entitled to the full protections of the First Amendment, because ‘[l]ike the protected books, plays, and movies that preceded them, video games communicate ideas – and even social messages.’” Keller, 724 F.3d at 1270-71And so the court refused to dismiss the case, which will now go trial. In that trial, we will learn whether California's publicity rights law will continue to value the desires of control of public figures over their own history or matters of art.
The district court denied EA’s motion, however, concluding that the plaintiffs established a reasonable probability they will prevail on their claims. “‘Reasonable probability’ . . . requires only a ‘minimum level of legal sufficiency and triability.’”
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: 9th circuit, california, football, free speech, historical fiction, historical figures, madden football, michael davis, publicity rights, vince ferragamo
Companies: ea
Reader Comments
Subscribe: RSS
View by: Time | Thread
Overstating things
they only succeeded in getting to have a trial, at which they will likely loose.
[ link to this | view in chronology ]
Re: Overstating things
That's pretty clearly stated in the article, so not sure why you say it's overstated.
they only succeeded in getting to have a trial, at which they will likely loose.
Assuming you mean "lose," if that were the case, then this round would have turned out different. The court did not find a likelihood of success in EA's case here...
[ link to this | view in chronology ]
Public figures
Does your average, historical, pro football player really fall into the category of notorious public figures?
[ link to this | view in chronology ]
Re: Public figures
Furthermore, if all they're using is basic info like height/weight/age without pictures, I'm not sure if the players can really claim that it's a "likeness". If they were getting into details like tattoos and nose shape, sure. But just showing a 6-2 222 lb player in the quarterback position does not really make that a "likeness" of anyone in particular.
It's a fact that player X played for team Y at time Z. If they aren't using the player's actual picture, that fact should be able to be used, without permission from anyone, whether in a newspaper article the next day or a video game 40 years later.
[ link to this | view in chronology ]
Re: Re: Public figures
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
EA decided that it didn't want to pay retired football players for using their likenesses and they're trying to pull a fast one with the courts.
Either pay up or stop using the likenesses of retired football players. EA is making millions of dollars off these sports games and it's time that they started compensating these players fairly.
[ link to this | view in chronology ]
Re:
Quite an interesting concept of what constitutes "history" you have there. What is it, life +70 years?
[ link to this | view in chronology ]
Re:
What makes them any different?
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
So, you're saying that Mikhail Gorbachev is not a historical figure, but he magically achieves that status the second he expires? That people should pay him for publicity rights, fair use be damned? Really? Or, is this only applicable to people famous for kicking a ball?
"it's time that they started compensating these players fairly"
Define "fairly".
[ link to this | view in chronology ]
I don't see how Constitutionally there is any room for debate over any balancing of rights here. Free speech rights are protected at the highest level, publicity rights are not.
[ link to this | view in chronology ]
Tupac? Gene Kelly? Ya gotta pay....
In the case of the players, sports games are dependent on recognition of those specific and unique identities. EA is not creating those identities, it is copying it ... Literally in motion capture and digitalization image. In stats, etc. It's doesn't add more, in any artistic sense. In fact, consumer are buying the games specifically for that realism. I'd expect madden16 to have.a deflate ball option.
Also: No different from other avatars ... Like the use of digitized Gene signing in the rain for VW, or a hologram Tupac. Those commercial and legal rights are founded in pretty strong moral rights.
Frankly, as despicable as Noriega was, that judgement was rediculous..
[ link to this | view in chronology ]
Re: Tupac? Gene Kelly? Ya gotta pay....
Whether that's a good argument or not, I don't know. But nobody here is arguing that people don't have rights to control their image in commercial settings.
[ link to this | view in chronology ]
Re: Re: Tupac? Gene Kelly? Ya gotta pay....
[ link to this | view in chronology ]
Re: Re: Tupac? Gene Kelly? Ya gotta pay....
[ link to this | view in chronology ]
Re: Tupac? Gene Kelly? Ya gotta pay....
History books are going to get pretty expensive if the publishers have to pay off everyone or their heirs that they write about. What a future.
[ link to this | view in chronology ]
Re: Tupac? Gene Kelly? Ya gotta pay....
That is not, actually, the law. California's law was rather specific to preventing such uses *for advertising purposes* and not for just any old commercial use.
It may be what you think the law is, but it's not what the law is.
In the case of the players, sports games are dependent on recognition of those specific and unique identities. EA is not creating those identities, it is copying it ... Literally in motion capture and digitalization image. In stats, etc. It's doesn't add more, in any artistic sense. In fact, consumer are buying the games specifically for that realism. I'd expect madden16 to have.a deflate ball option.
You're picking a standard that has nothing to do with the case. It's not about whether or not EA created anything. It's about whether those names/likenesses are "protectable" under the law, or whether their use is covered by the First Amendment.
[ link to this | view in chronology ]
Re: Re: Tupac? Gene Kelly? Ya gotta pay....
If EA were to give the games away, then that would be 'free' speech.;)
[ link to this | view in chronology ]
Re: Re: Re: Tupac? Gene Kelly? Ya gotta pay....
We've seen that argument before, in the copyright context. But in the copyright context, it has been established that facts belong in the public domain. Further, that fundamental assignment has constitutional dimension. In the collision between copyright and free speech, it's constitutionally essential to keep facts free for all to use.
Labeling a firmly-rejected copyright theory as a right-of-publicity should not save that theory. Don't confuse through mere labels. No one ought to have a commercial monopoly in the bare truth.
A right to license is the right to suppress.
[ link to this | view in chronology ]
Re: Re: Re: Re: Tupac? Gene Kelly? Ya gotta pay....
No. What I am saying is these players, who work in an entertainment industry, own the rights of their personifications as any actor would. The EA game crosses the line when they use not only the physical characteristics of the player, but also their names and/or likenesses. The easy way around the California law is to sign them up young or use imaginary players. The use the stats is not in question here. That is obviously in the public domain.(see the other post to Mike's that gives the pertinent Cal. code)
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Tupac? Gene Kelly? Ya gotta pay....
It depends on the state they're in. What you're talking about is a privilege that is only afforded in some states, not by national law.
Also, this is not a copyright issue at all. It invovles a different body of law.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Tupac? Gene Kelly? Ya gotta pay....
That is a First Amendment issue.
In the copyright context, specifically, the Court has repeatedly limned “a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts.”(**) Copyright's merger doctrine allows for even the free reuse of expression wherever a commercial monopoly on that expression would amount to a commercial monopoly on facts—notwithstanding copyright's constitutional support in Art. I, Sec. 8, Cl. 8, which is undoubtedly of the highest constitutional order.
California has chosen to recognize another species of “intellectual property.”(***) That species is indeed divorced from copyright. It is a new species, unknown to the founders. But, as the state has also recognized, that peculiar species does not escape bounds commanded by the First Amendment. Lessons from the copyright context may illustrate the law of the Constitution of the United States.
(*) Florida Star v BJF (1989), quoting Smith v Daily Mail (1979).
(**) Eldred v Ashcroft (2003), quoting Harper and Row v Nation (1985), in turn citing New York Times v United States (1971).
(***) Comedy III v Saderup (Cal. 2001).
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Tupac? Gene Kelly? Ya gotta pay....
[ link to this | view in chronology ]
Re: Re: Tupac? Gene Kelly? Ya gotta pay....
[ link to this | view in chronology ]
Re: Tupac? Gene Kelly? Ya gotta pay....
How does a dead person "protect their rights"? Why was this never an issue until recently?
How long does this last - are you saying that Shakespeare's estate should be responsible for paying Julis Caesar's descendants or that the play should be blocked, for example, or is there a point where it's clear that this is as stupid as it is insane?
"Frankly, as despicable as Noriega was, that judgement was rediculous."
Why? There's a million examples of historical figures being used in similar ways in art, film, TV, books, theatres, even music as well as games. Why is this suddenly such a big problem, and why does the massive level of precedent not count?
[ link to this | view in chronology ]
yesterdays game is history.
[ link to this | view in chronology ]
Re:
According the the text above the names are already different as are the faces.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Cert Petition
(H/T “EA Takes Right-of-Publicity Case to Supreme Court”, by Vanessa Blum, The Recorder, Oct 7, 2015)
[ link to this | view in chronology ]
The morons need to stop defending EA. They also keep forgetting that EA is in the business of making money off the faces of celebrity football players and that they are doing so to make money. I don't see EA compensating these former football players for using their likenesses in these games.
Either pay up or STFU.
[ link to this | view in chronology ]
Re:
Yes. What's wrong with that?
The morons need to stop defending EA. They also keep forgetting that EA is in the business of making money off the faces of celebrity football players and that they are doing so to make money. I don't see EA compensating these former football players for using their likenesses in these games.
That's true, but that's because there's a pretty strong argument that the company doesn't need to. It's using *factual* information in a game. Why should it need to compensate for that?
[ link to this | view in chronology ]
Just need 'likenesses' of EA shareholders/execs/CEO etc (without names of course!).....
[ link to this | view in chronology ]
[ link to this | view in chronology ]
SO, what am I supposed to take away from it?
[ link to this | view in chronology ]
Supreme Court petition
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
None of these organizations have a sterling reputation for ethical behavior to begin with, and if doing the right thing involves additional effort and cost (disbursing royalties to the retirees,) I wouldn’t expect them to lift a finger.
[ link to this | view in chronology ]
[ link to this | view in chronology ]