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Judge Rules Games Are "Expressive Works"

Soulskill posted more than 4 years ago | from the decision-pending-on-wetness-of-water dept.

The Courts 157

There has been an ongoing legal battle over the past few years about how and when game makers can use the likenesses of football players without their permission. Former college football player Samuel Keller filed a class action suit in May against Electronic Arts for the publisher's use of NCAA players' information — including things like jersey number, height, weight, skin tone and hair style, but not names — to recreate actual teams within sports games. An earlier suit filed by NFL Hall-of-Famer Jim Brown brought up the fact that video games weren't even a consideration when contracts and licensing rights were negotiated in the '50s and '60s, yet many football players from that era (including Brown) are represented in the occasional sports game whether they like it or not. A ruling came down from a district court judge last Wednesday stating 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 are thus protected under the First Amendment. Brown and fellow Hall-of-Famer Herb Adderley are now seeking to throw their support behind Keller's lawsuit.

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No shit sherlock (4, Insightful)

aussie_a (778472) | more than 4 years ago | (#29576615)

Of course they are.

Its sad when we all applaud a judge actually making a good ruling. Shouldn't that simply be the assumed state of all rulings?

Re:No shit sherlock (5, Insightful)

Kinky Bass Junk (880011) | more than 4 years ago | (#29576897)

Why is this so obvious? Personally I would have counted video games as a commercial medium, the same as gift cards for example. They are made for the sole purpose of being sold and making as much money as possible. It is hard to count something as expression when it is made by hundreds of different people and controlled by a board of directors.

Re:No shit sherlock (5, Interesting)

unlametheweak (1102159) | more than 4 years ago | (#29577001)

Personally I would have counted video games as a commercial medium, the same as gift cards for example.

Which is pretty much how Andy Warhol approached art. Business and art are not (necessarily) distinct from each other. Production line art can be just as entertaining, beautiful or thought provoking as something drawn in a scenic mountainside retreat.

Re:No shit sherlock (0)

mcgrew (92797) | more than 4 years ago | (#29579091)

Which is pretty much how Andy Warhol approached art. Business and art are not (necessarily) distinct from each other. Production line art can be just as entertaining, beautiful or thought provoking as something drawn in a scenic mountainside retreat.

Well, Warhol was unique, in that when he worked for an ad agency the ads he produced WERE art. And the art he produced as art (not advertising) were not that much different from his ads.

Production line art can be just as entertaining, beautiful or thought provoking as something drawn in a scenic mountainside retreat.

If by "production line art" you're talking about dogs playing poker or Elvis on velvet, NO NO NO NO WRONG WRONG WRONG WRONG. This is NOT art. I heard a definition of art the other day that really seemd insightful (I studied art in college). A workman works with his hands. A craftsman works with his hands and mind. An artist works with his hands, mind, and heart.

If you see a painting and your only reaction is "oh, that's pretty" it's probably NOT art. If it takes your breath away and makes you say "WOW!" it is art.

Re:No shit sherlock (0, Troll)

Kokuyo (549451) | more than 4 years ago | (#29579195)

I've yet to see art, then. Where can it be found? Certainly not in galleries. I've never seen stuff like that in those places.

Re:No shit sherlock (1)

mcgrew (92797) | more than 4 years ago | (#29579633)

Go to an art museum; there is at least one in every major city. No illustration in a book or computer screen will do the original justice.

If you're in Tampa, visit the Dali museum. Many of his works are indeed breathtaking. If you ever see an Audrey Flack painting your jaw will hang open (again, you will be unimpressed by a reproduction).

Re:No shit sherlock (2, Insightful)

i_ate_god (899684) | more than 4 years ago | (#29579519)

That is very wrong.

Taking your breath away is an emotional response to some art. Other art can make you feel sad, depressed, angry, happy, giddy, naughty, indifferent, enlightened, etc.

Art is kind of like a custom communication protocol. It conveys a message from creator to consumer.

"Oh look, dogs playing poker, that's cute!"
"Why thank you, I did intend it to look cute. This was in my head and I wanted to explain it to you, thank you for understanding what I was trying to say."

See how that works and why you're oh so wrong?

Video games are similar. But with video games, there are several different aspects to the art, level design, story writing, music, even gameplay, that are usually spearheaded by a select few, and developed by many. The junior developers could be regarded as tools, much a kin to a paintbrush, that are used to create a tangible representation of the imagination of the story director.

Your idea that art has to make the consumer feel "breathless" is certainly a bizarre and strange opinion.

Re:No shit sherlock (1)

mcgrew (92797) | more than 4 years ago | (#29579831)

Taking your breath away is an emotional response to some art. Other art can make you feel sad, depressed, angry, happy, giddy, naughty, indifferent, enlightened, etc.

That's true; my comment was over simplistic. But it's kind of like explaining Firefox to Grandma, you have to simplify.

Art is kind of like a custom communication protocol. It conveys a message from creator to consumer.

It can, but not necessarily.

"Oh look, dogs playing poker, that's cute!"
"Why thank you, I did intend it to look cute. This was in my head and I wanted to explain it to you, thank you for understanding what I was trying to say."

No, that's dead wrong. It would take a GREAT artist to make "cute" into art.

But with video games, there are several different aspects to the art, level design, story writing, music, even gameplay, that are usually spearheaded by a select few, and developed by many.

Like movies, which also can be art, but aren't necessarily art.

Re:No shit sherlock (2, Insightful)

Secret Agent X23 (760764) | more than 4 years ago | (#29579951)

If you see a painting and your only reaction is "oh, that's pretty" it's probably NOT art. If it takes your breath away and makes you say "WOW!" it is art.

This might be valid as the starting point for a discussion if you're sitting in Philosophy 101 and aesthetics is the current topic. But if you have a court case in which the question "Is it art?" might play a role, you can't very well apply that standard, can you?

[OT] What is art? (1)

Khelder (34398) | more than 4 years ago | (#29580091)

So whether it's art or not depends on what the creator's attitude to it was? It seems to me that the important thing should be the nature of the artifact produced.

But that's probably why I don't get "modern art": it seems to base the artisticness of an artifact on the story one crafts around the creator, the process whereby the artifact was created, and the artfact, rather than the artifact itself.

Re:No shit sherlock (1)

Runaway1956 (1322357) | more than 4 years ago | (#29580101)

"If by "production line art" you're talking about dogs playing poker or Elvis on velvet, NO NO NO NO WRONG WRONG WRONG WRONG. This is NOT art. I heard a definition of art the other day that really seemd insightful (I studied art in college). A workman works with his hands. A craftsman works with his hands and mind. An artist works with his hands, mind, and heart.

If you see a painting and your only reaction is "oh, that's pretty" it's probably NOT art. If it takes your breath away and makes you say "WOW!" it is art."

You do the elitist scene much? Bunch of pompous asses sipping bourbon, puffing on genuine Cuban cigars, and dressed in $10,000 suits, feeling superior to the masses who find it difficult to pay for a $10,000 car.

Cave paintings don't take my breath away, but they were, and they are art.

The works of art hanging on my refrigerator don't take my breath away, but they are still art.

Those wankers in academia, and all those successful businessmen who subscribe to this attitude are really pretty clueless. I can take them out onto construction sites and show them real art, and they wouldn't recognize it. I can take them into laboratories, and show them more real art, and they wouldn't recognize it there, either.

Puffed up, self important wankers.

Re:No shit sherlock (4, Insightful)

stephanruby (542433) | more than 4 years ago | (#29577035)

Saturday Night Live is a commercial medium. The Obama poster was being sold for profit. But you don't see Sarah Palin or Obama suing either party. Public figures are fair game, whether it's for profit, or not for profit.

Re:No shit sherlock (1)

jecowa (1152159) | more than 4 years ago | (#29577061)

Although I agree that video games are a works of artistic expression, Including the likenesses of these players in video games should require the same licensing and permissions that including them in movies would require.

Re:No shit sherlock (2, Insightful)

crispytwo (1144275) | more than 4 years ago | (#29577141)

not if they are not actually present in the movie/game...

you don't get licenses for things that are merely representations of likeness.

Re:No shit sherlock (2, Interesting)

skegg (666571) | more than 4 years ago | (#29577775)

I'm not sure whether or not that is true. The below came to mind:

If Schwarzenegger had decided not to lend his appearance to the film, then John would have shot the T-800's face off before the audience got a good look at him.

Taken from Wikipedia [wikipedia.org]

Re:No shit sherlock (1)

aussie_a (778472) | more than 4 years ago | (#29578353)

Choosing to not use someone's image out of respect is quite distinct from not being allowed to use someone's image.

Re:No shit sherlock (0)

Anonymous Coward | more than 4 years ago | (#29579511)

Uhm. IANAL. And neither is anyone else in this discussion (unless I missed a comment). Schwarzenegger could have sued the shit out of the movie studio if they used his likeness without his permission. He gets paid to appear in movies. (Imagine a movie that marketed itself off the strength of having Natalie Portman starring, that was only using a digital recreation? Okay. Now remove all of the porn.)

Re:No shit sherlock (3, Interesting)

smurphmeister (1132881) | more than 4 years ago | (#29580211)

Your analogy is close, but just a little off. If the movie marketed itself as having Natalie Portman starring, without her permission, then they are in trouble. If they used a digital likeness, but at no point said that it was Natalie Portman, then you've got the same situation as the games.

In these games, they have nameless players, that just happen to look a lot like, play a lot like, and wear the same number as a real former/current player for that same team. This allows the hypocritical NCAA to license the game without breaking their own rules that players can't be used to endorse products.

Re:No shit sherlock (1)

Cytotoxic (245301) | more than 4 years ago | (#29579991)

I think this had more to do with SAG contracts than with respect.

Re:No shit sherlock (0)

Anonymous Coward | more than 4 years ago | (#29577085)

that argument only works for a closed source game. What about an open source or freeware game? what if I want to make a reality simulator and give it out for free? that's moving closer towards the realm of documentary/news and away from pure profit enterprise.

Re:Freeware Reality Simulator (1)

Aklyon (1398879) | more than 4 years ago | (#29579345)

what if I want to make a reality simulator and give it out for free?

Dwarf Fortress beat you to that.

Re:No shit sherlock (1)

MrMista_B (891430) | more than 4 years ago | (#29577091)

Do you think the same about music?

Re:No shit sherlock (1)

bogjobber (880402) | more than 4 years ago | (#29577131)

They are made for the sole purpose of being sold and making as much money as possible. It is hard to count something as expression when it is made by hundreds of different people and controlled by a board of directors.

What about movies? Theatre? Magazines? Newspapers? Websites? All of these would fit your definition.

Re:No shit sherlock (3, Interesting)

fireball84513 (1632561) | more than 4 years ago | (#29577133)

Well, i could think of a good reason why it would in fact be considered art, but what you have to really think of is why. why would it matter when they are not even using names. really they are just using info that could be found anywhere. it sounds to me that the lawsuit is just about money, and when it comes to suing just to earn an extra buck that you really don't deserve, you have to consider whether its better to follow the law to the T or to instead leave the money to those who have rightfully earned it.

Re:No shit sherlock (0)

Anonymous Coward | more than 4 years ago | (#29577195)

By your definition the hundreds of freely downloadable games available on the internet are..... ?

Re:No shit sherlock (1)

wizardforce (1005805) | more than 4 years ago | (#29577325)

The problem with your interpretation of video games is that not only is it incorrect, but it is exactly the kind of thinking that will be used to censor and regulate video games right into the ground.

Re:No shit sherlock (1)

noundi (1044080) | more than 4 years ago | (#29577507)

They are made for the sole purpose of being sold and making as much money as possible.

In a capitalistic world, what isn't? I'm not being philosophical, I'm actually asking you. Art, tools, entertainment, they are all created for profit -- in a capitalistic world that is, not in general.

Re:No shit sherlock (0)

Anonymous Coward | more than 4 years ago | (#29577761)

It is hard to count something as expression when it is made by hundreds of different people and controlled by a board of directors.

You mean like the ceiling of the Sistine Chapel?

Re:No shit sherlock (2, Insightful)

Kashgarinn (1036758) | more than 4 years ago | (#29577839)

It's not obvious, but it's not very complicated either.

The game isn't called "American Football like your man Lance Alworth played it" where the main appeal would be connections to the real characters of that era and how they played and how the game was back then, and maybe match them directly to other cool characters from the present.

It's a football game where the appeal is that it's a football game, and only a passive likeness of people is used.

I'd fully support if the "beatles rockband" would have tried to do screw the people left of the beatles over, but this? No, not really, here this is really just an artistic license to create similar characters, they're not exploiting anyones particular identity for capital gain.

Re:No shit sherlock (1)

mcgrew (92797) | more than 4 years ago | (#29578933)

Personally I would have counted video games as a commercial medium, the same as gift cards for example

Gift cards? Gift cards are tools, video games are not. Video games are entertainment, exactly like movies, books, and music. All expressive arts, entirely unlike gift cards, flyers, ads, and other commercial mediums.

What huh? (3, Interesting)

raehl (609729) | more than 4 years ago | (#29576987)

The video game company is trading on the likeness of a person. This isn't a painting in a gallery, it is software sold by the millions around the globe, with millions in profit involved.

Personally, I think the obvious ruling here is that you can't put someone's likeness in a game without their consent.

That said, I don't NECESSARILY agree that stats and a hairstyle constitute a likeness.

Re:What huh? (1)

lord_mike (567148) | more than 4 years ago | (#29577491)

And an artist who paints a painting doesn't sell it for profit?

Re:No shit sherlock (0)

Anonymous Coward | more than 4 years ago | (#29577043)

in that case, I'm going to photograph you but add a mustache as my "artistic license," and sell them as birthday cards, hypothetically netting me $500,000 in annual sales, while you get nothing, despite the fact that I'm using your "likeness" for a for-profit commercial venture.

EA is a company with the goal of earning money, not to make art and contribute to society/ culture/ humanities.

Re:No shit sherlock (0)

Anonymous Coward | more than 4 years ago | (#29577173)

At least in Denmark, if you are being photographed, know about it, does not have a written contract , and does not inquire for the picture to be deleted or kept in private momentarily, then you give away all your rights for that photo, and then the photographer can legally use your photo for-profit, without your consent.

Re:No shit sherlock (1)

I cant believe its n (1103137) | more than 4 years ago | (#29577481)

B.S.

Re:No shit sherlock (0)

Anonymous Coward | more than 4 years ago | (#29578395)

You want to use my likeness without my permission? As long as you don't break any privacy laws, I would support you doing so in a way that doesn't give you permission ;)

Re:No shit sherlock (1)

Bakkster (1529253) | more than 4 years ago | (#29579385)

While a photograph might run afoul due to copyright issues, this case is different. It would be like you drawing a caricature of someone, and more specifically a public figure. While it is undeniably a use of their likeness, it is still created entirely by you, and therefor a protected artistic work.

Replica Watches (1)

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Re:No shit sherlock (0)

Anonymous Coward | more than 4 years ago | (#29577267)

By the reasoning the judge sites you should be able to sing a song or make a movie directly copied as long as its not the original artist then all is fair game. Hmmmmm

Re:No shit sherlock (1)

aussie_a (778472) | more than 4 years ago | (#29578405)

You can as long as the work has moved into the public domain. The laws that prohibit you from doing so for copyrighted works... are copyright laws.

Are you going to say someone's face, height and weight can be copyrighted? Is that truly what we've sunk to?

Re:No shit sherlock (1)

jandersen (462034) | more than 4 years ago | (#29577443)

Of course they are.

I don't think it is all that obvious. I would think the right to make money from one's looks belongs to the person, at least until he/she sells that right to somebody else. And while it may not be all that bad for a footballer to be put into a football game, I think everybody would agree that it wouldn't be all that nice to have your face put on the victim in a game dedicated to, say, gang-rape or similar.

Re:No shit sherlock (0)

Anonymous Coward | more than 4 years ago | (#29577987)

It is sad that their is the implied law, thats the law that me and you know. I.e. if your going w/ the flow of traffic and are pulled over for speeding your guilty despite the fact that the law explicitly states that your not guilty. Then their is the explicit law, like the first amendment. 90% of the time, implied law wins. The implications to implied law is that - the law is a sham.

Anyhow this is a triumph for explicit law.

Re:No shit sherlock (0)

Anonymous Coward | more than 4 years ago | (#29578095)

Except that the goal with most sports games is to be as unexpressive as possible. Anything that deviates from reality is considered an artifact.

Re:No shit sherlock (1)

makomk (752139) | more than 4 years ago | (#29579095)

Well, I'm pretty sure that the video games manufacturers pay a huge fortune for the rights to, amongst other things, use the players' appearances in their games. It's just that the players don't see a penny of it - it all goes to the league and the teams.

Re:No shit sherlock (1)

Khelder (34398) | more than 4 years ago | (#29580139)

Its sad when we all applaud a judge actually making a good ruling. Shouldn't that simply be the assumed state of all rulings?

Yeah, it should. But it's not. I feel both relieved that the right decision was made, and sad that I feel so relieved.

Yeah (3, Funny)

Osinoche (769786) | more than 4 years ago | (#29576643)

That's right. First amendment baby. woooooo hooooooooo USA USA USA

As a player, you don't own your own image (5, Informative)

BadAnalogyGuy (945258) | more than 4 years ago | (#29576649)

It's a very rare player that has rights to their own name, image, and likeness. For the most part, when you sign your contract with the NCAA and professional leagues you must turn over those rights to the league. This gives them the ability to license that data for things like games.

Whether the games are expressive works or not, the rights to those likenesses should lie with the leagues, not the players.

Re:As a player, you don't own your own image (2, Interesting)

jecowa (1152159) | more than 4 years ago | (#29576853)

If the players sign away their rights to their names, Why don't the game companies include those names in the NCAA games?

Re:As a player, you don't own your own image (1, Insightful)

Anonymous Coward | more than 4 years ago | (#29576919)

That would require paying the NCAA?

Re:As a player, you don't own your own image (1, Insightful)

Anonymous Coward | more than 4 years ago | (#29576937)

either that or the NCAA actually has the decency not to pimp out amateurs playing for free tuition.

Re:As a player, you don't own your own image (1)

blackraven14250 (902843) | more than 4 years ago | (#29577111)

Aren't they pretty much already doing that?

Re:As a player, you don't own your own image (1)

jecowa (1152159) | more than 4 years ago | (#29576981)

I'm guessing the game companies are already paying the NCAA to use all their team names and team logos and to title their games things like "NCAA Football '10".

Re:As a player, you don't own your own image (3, Interesting)

samurai54 (1645989) | more than 4 years ago | (#29577293)

Player's names not being able to be used in games has to do with advertising principles in collegiate athletics. Just as Nike isn't allowed to exploit young players by using their name on the jerseys they sell. Ever notice all Pro jerseys have the players' names on the back where no college jerseys do? Since college student athletes are not allowed to receive money for advertising or any other opportunity arising from their talent on the field/court/etc. , the NCAA is simply trying to stop the corporations from making even more money directly off the athletes.

Re:As a player, you don't own your own image (2, Insightful)

runningman24 (1172197) | more than 4 years ago | (#29577489)

Someone should tell the NCAA about the Tostito's Fiesta Bowl / the Rose Bowl presented by Citi / or the hundreds of sponsors for March madness. Any argument that the NCAA wants to prevent corporations from making money is proved false by reality. The NCAA simply wants to be the only beneficiary of the tens to hundreds of millions. That's why the player's names aren't on the jerseys, and why their names aren't in the games. If their names were actually mentioned, then the players would have to get some of the money. If it can be claimed they're only selling a team jersey, the colleges and NCAA keep it all. Never mind that the only jerseys that sell are the ones with the past or current stars numbers on them. To the subject at hand, people don't buy sports games to play as a uniform, they also want to play as their favorite players with realistic stats, abilities and looks. Even with the looks, jersey, and stats being accurate, it's usually not enough. The first thing many people do is download a patch with the real names.

Re:As a player, you don't own your own image (1)

noundi (1044080) | more than 4 years ago | (#29577487)

It's a very rare player that has rights to their own name, image, and likeness. For the most part, when you sign your contract with the NCAA and professional leagues you must turn over those rights to the league. This gives them the ability to license that data for things like games.

Whether the games are expressive works or not, the rights to those likenesses should lie with the leagues, not the players.

For the record it's just like the record companies. They own the entire brand of their artists, unless the artists actually negotiated (very, very rare) other terms. How does this scenario play out when we swap sports players with musical artists?

Re:As a player, you don't own your own image (1)

R2.0 (532027) | more than 4 years ago | (#29580447)

"For the record it's just like the record companies. They own the entire brand of their artists, unless the artists actually negotiated (very, very rare) other terms. How does this scenario play out when we swap sports players with musical artists?"

It actually plays out in the (older) players favor. There is a suit making it's way through the courts right now regarding revenues from electronic distribution of music recorded before the early 70's. Prior to that time, the standard record company contract didn't address licensing at all. And one of the basics if contract and licensing law is that, if you don't expressly waive/license a right, you retain it. So the artists who produced recordings under the old contracts are claiming that the labels have no right to license those recordings AT ALL. And, since the labels agreement with Apple and Amazon are licensing agreements, the labels owe them a metric fuckton of money.

Of course, the labels are fighting this by saying that they are NOT "licensing" the music to Apple and Amazon; they are "selling recordings" just like shipping CD's to Wal Mart. Aside from being a ridiculous argument from a technical standpoint (so apple keeps a million computer files of the same Beatles song and deletes them one by one when a "copy" gets sold?) it's a risky argument from a legal standpoint. If the labels get a win, and the court declares that the labels are selling copies, 2 things happen:
1) It takes Doctrine of First Sale and sticks it up the RIAA's ass vis a vis "piracy",
2) More importantly (IMHO) it cracks open the terms of the original contracts. The artists will argue that clauses in the contracts regarding "10% for breakage, 10% for pressing", etc., are unconscionable, and so should be stricken or at least renegotiated. It's one thing to create a legal fiction that a bunch of data is an individual "record"; it's another thing to say that these "records" get broken in shipping and use vinyl and plastic for distribution.

And, for your pleasure, a tie in to my sig. The main reason that "WKRP" has been so scarce in reruns and DVD collections is that, during their prime-time run they licensed the use of a LOT of rock music - the first TV show to do so on that scale. But when the licenses ran out, renewing them was a nightmare because they couldn't just go to the labels - the licensing rights had been disbursed all over the place, from the Estate of Janis Joplin to some band member who's now an insurance salesman in Utah.

Re:As a player, you don't own your own image (1)

elrous0 (869638) | more than 4 years ago | (#29580371)

This whole thing just highlights the fact that NCAA players should be PAID, just as professional athletes. Colleges make BIG money off their athletes these day, and said athletes are grown men (and women) with the same rights to money made off the sweat of their brow as any other adult. The old NCAA rules might have been appropriate back when college sports were just moderately formal fun and games from students who were primarily there to get a college degree. But today's major NCAA athletic franchises are big business enterprises made up of athletes who are often only in college because of their athletic ability (and who are focused entirely on playing a sport, with some token time spent in a classroom to make them look like real students). The whole paternalistic "They're just students, and shouldn't be paid" facade is just a joke--a license for legal exploitation in sports, like football and basketball, that should have went to a more honest baseball-style minor league and semi-pro system a long time ago.

If NCAA players were paid and allowed to license their image in the first place, like their NFL counterparts, this wouldn't be an issue (and my NCAA Football 09 could have real player names in it dammit!).

So... (4, Interesting)

MorderVonAllem (931645) | more than 4 years ago | (#29576675)

...does this mean I can create my own football game using the likeness/names of the players without having to license the information? (

Re:So... (2, Informative)

Osinoche (769786) | more than 4 years ago | (#29576693)

Yes . That is correct.

Re:So... (1)

cryfreedomlove (929828) | more than 4 years ago | (#29576723)

You would still need a license from the league you are seeking to represent in your game. The players signed the rights to the use of their image over to the league. The league licensed them to the game developer.

Re:So... (4, Insightful)

Trepidity (597) | more than 4 years ago | (#29576821)

This ruling is actually arguing that you don't need any license at all, from anyone, because it's First-Amendment-protected expressive speech.

Re:So... (1, Interesting)

moon3 (1530265) | more than 4 years ago | (#29576923)

Do not confuse this, you do need license for real world persons and teams. This is not the case, they created characters that might look similar to some players (more likely by accident), some confused and greedy players think they really are depicted, but really they aren't. This is typical little troll extort seeker case.

Re:So... (2, Interesting)

Leafheart (1120885) | more than 4 years ago | (#29579099)

So if it quacks like a duck, floats like a duck, but you call it goose it is game, but call it duck and you have to pay?

Re:So... (0)

Anonymous Coward | more than 4 years ago | (#29579265)

Oh suuuuure, just "by accident". ...EA and the NCAA argue they have a free speech right to use the images, which don't include the players' names but often reflects the players' race, jersey number and athletic ability. EA and the NCAA argue that they are allowed to use the images without players' permission because the video game action is based on freely available data such as their "likenesses, performance statistics and biographical information."

So I can make a game with a player that looks photo-realistic like Jim Brown, has all his stats, and his personal biography, but call him "Jim Browne". I'll make a ton of money, and won't pay the real Jim Brown a dime for using his likeness to make me money. Oh yeah, that sounds fair.

Re:So... (1)

kthejoker (931838) | more than 4 years ago | (#29580439)

Actually, you couldn't be more wrong.

Umm ... have you played an EA NCAA football game? They clearly use the exact players from the collegiate teams to make up their rosters (even the backups) - they get their hometowns right, their listed heights and weight, their skin color, even their hairstyles, and of course, their jersey numbers and positions. Then they name them "#15" instead of Tim Tebow and don't pay him anything for the privilege.

The chief issue here is whether or not it is legal for the NCAA (a non-profit organization presumably there to look out for the interests of its amateur athletes) to license out amateur players' images to video game companies.

Or more importantly why players aren't allowed to opt out of having their image recreated for the game if they so choose.

There are arguments for both sides, but don't demean Mr. Keller's arguments by calling this a nuisance suit.

Re:So... (1)

iamhigh (1252742) | more than 4 years ago | (#29579119)

Along the same lines... there was recently a case about fantasy sports stats [usatoday.com] that concluded it was public info and therefore MLB had no right to restricts someones use of those stats. It seems that "any reproduction, account or description of this game..." stuff is BS and I am glad someone finally called them on it.

Facts and figures are not copyrightable (4, Insightful)

MobyDisk (75490) | more than 4 years ago | (#29576761)

Facts and figures cannot be copyrighted. And how can public information be abused? They just want money.

Re:Facts and figures are not copyrightable (0)

Anonymous Coward | more than 4 years ago | (#29576859)

I don't think copyright is really the issue here so much as right of publicity.

Re:Facts and figures are not copyrightable (1)

Grimbleton (1034446) | more than 4 years ago | (#29578369)

Sorry, my copy of the Constitution seems to be out of date, could you cite the full text of the Right of Publicity amendment?

Re:Facts and figures are not copyrightable (0)

Anonymous Coward | more than 4 years ago | (#29578753)

Sorry, my copy of the Constitution seems to be out of date, could you cite the full text of the Right of Publicity amendment?

Your copy predates 1791 and the Ninth Amendment. There are rights that aren't enumerated.

Re:Facts and figures are not copyrightable (0)

Anonymous Coward | more than 4 years ago | (#29578981)

It's near the end, you might not have read that far:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Re:Facts and figures are not copyrightable (1)

Rocketship Underpant (804162) | more than 4 years ago | (#29577253)

But without extra government incentives lumped under the broad and vague umbrella of copyright, football players will stop putting numbers on their jerseys or letting people see their faces while they play. Oh the humanity! Think of the children! There must be some way the legal system can be twisted and abused to prevent the calamity that will occur if computer game programmers and artists have free reign to make products their customers want!

Finally computer artists get some credit (3, Insightful)

wesslen (1644543) | more than 4 years ago | (#29576803)

While I don't think an EA football title is the perfect example of artistic expression... it is nice to know that the supreme court is finally giving artists of the digital age their due. There's a reason game design and computer graphics is always filed in a colleges Art's and Sciences program. It's because these fields are the best of both worlds. We might be nerdy but don't forget the art part

Re:Finally computer artists get some credit (0)

Anonymous Coward | more than 4 years ago | (#29577099)

Also don't forget that when you are work-for-hire (full-time employee with benefits), the copyright of your "art" is owned by the company, not you. So the credit goes to EA in this case, not the artists.

Re:Finally computer artists get some credit (0)

Anonymous Coward | more than 4 years ago | (#29577263)

And that would be different from a graphics designer for a magazine or an artist drawing images for an ad, how exactly? Being paid to do something doesn't invalidate it as art, though I suppose "undergrounders" would disagree.

The GP was claiming that this is a recognition that 3D models and textures used in a video game instead of a movie are being acknowledged as a valid form of artistic expression by the courts which you completely missed or deliberately ignored in order to get a troll in.

+1 Redundant

Awesome... (5, Funny)

sitarlo (792966) | more than 4 years ago | (#29576831)

Now I can submit my Michael Vick Dog Fighting game to the app store.

Re:Awesome... (0)

Anonymous Coward | more than 4 years ago | (#29577147)

Meant to mod funny, accidentally hit informative

Re:Awesome... (1, Funny)

Anonymous Coward | more than 4 years ago | (#29577283)

I would have modded it interesting, then promptly got a copy.

Re:Awesome... (2, Interesting)

BikeHelmet (1437881) | more than 4 years ago | (#29577413)

So I guess this means Charles Barkley RPG is totally 100% legal? Actually, it probably was before this ruling, because of its price. (Free)

http://www.joystiq.com/2008/01/22/fan-made-charles-barkley-rpg-sees-full-release/ [joystiq.com]

I wouldn't mind seeing that on the app store. :P

Open to competition (2, Insightful)

Pinckney (1098477) | more than 4 years ago | (#29576869)

Ronald Katz, the lawyer representing Adderley and Brown, wrote in a filing Monday that allowing EA Sports to profit from the use of athletes' likenesses without their permission means "EA could use for free the identity of thousands of present and former collegiate and professional athletes, eliminating any legal reasons for EA to continue any licensing, and giving it a windfall worth hundreds of millions of dollars."

So if this stands, anyone else could produce their own sports titles to compete with EA? Sounds good. I suppose EA feels that the end of licensing fees will be more of a boon than any competition they face.

Re:Open to competition (2, Informative)

Anonymous Coward | more than 4 years ago | (#29576901)

The NFL logos, symbols, team logos etc, would still fall under trademark rules. Someone could create another games and use player names and statistics just not all that other stuff.

I want a pc NFL games and that may be a court case (1)

Joe The Dragon (967727) | more than 4 years ago | (#29578965)

I want a pc NFL games and that may be a court case if some where to make one that may be far from a open and shut case.

Re:Open to competition (1)

kthejoker (931838) | more than 4 years ago | (#29580481)

Witness the original TECMO Bowl, which had rights with the NFLPA to use Walter Payton, Marcus Allen, Dan Marino, Lawrence Taylor's names, etc. but had to make up team names for them ("Cleveland Dragons" all the way!)

On the other hand... (2, Insightful)

overbaud (964858) | more than 4 years ago | (#29576873)

... if a game was created that had the faces and bodies of various judges (this judge in particular) and politicians and played like GTA complete with hookers and drug use I don't think that said figures would care very much about the first amendment. What if a game about hookers was created with a character that looked like the judges wife? Would he care as much then?

Re:On the other hand... (0)

Anonymous Coward | more than 4 years ago | (#29576935)

Since neither the judge nor his wife have any reason to believe their name or likeness is a protected piece of IP they couldn't say jack.

Re:On the other hand... (2, Funny)

Hanners1979 (959741) | more than 4 years ago | (#29577407)

If the hookers all looked like a judge's wife, I'd want a refund.

Guess Not (0)

Anonymous Coward | more than 4 years ago | (#29577457)

Thats probally how he met her in the first place.

TT

Re:On the other hand... (1)

mcgrew (92797) | more than 4 years ago | (#29579459)

What if a game about hookers was created with a character that looked like the judges wife? Would he care as much then?

It would be libel. That's a completely different thing. If it was a game about a courtroom with the judge's likeness he shouldn't have a problem with it -- unless the game made him look like a buffoon.

Think of the Children (1)

unlametheweak (1102159) | more than 4 years ago | (#29576921)

There has been an ongoing legal battle over the past few years about how and when game makers can use the likenesses of football players without their permission.

This is a case where people should stop thinking about lawsuits and royalties and start thinking of the children, because in the end, it's the kids that count.

Given the demographics of /. readers... (1)

G3ckoG33k (647276) | more than 4 years ago | (#29577039)

Given the demographics of /. readers, as seen here http://www.alexa.com/siteinfo/www.slashdot.org#demographics [alexa.com] , I wouldn't be surprised if many here considers the original Doom series great art! :)

Re:Given the demographics of /. readers... (1)

WWWWolf (2428) | more than 4 years ago | (#29578545)

Given the demographics of /. readers, as seen here http://www.alexa.com/siteinfo/www.slashdot.org#demographics [alexa.com] , I wouldn't be surprised if many here considers the original Doom series great art! :)

Why not? Doom is an excellent and influential piece of popular art: perhaps not the most remarkable game of all time, but definitely one that entertained many people and inspired latter works.

If you want to look at more artful games from that era, try Ultima VII. Epic, sprawling story! Memorable social commentary! Immersive gameworld! Detailed visual and aural work! (Etc, and so forth.)

Whats the problem? (1)

nathan4369 (1646349) | more than 4 years ago | (#29577165)

I don't even see issues the players would have unless they weren't being accurately portrayed...

So... (0)

Anonymous Coward | more than 4 years ago | (#29577377)

Does that mean I can make an almost exact replica of a popular video game, change a few things, call it a parody and distribute it online free of charge?

I'd love to see what would happen if someone does this to an EA game to see if they would stand by the "first amendment" then.

Re:So... (1)

gordguide (307383) | more than 4 years ago | (#29577915)

Probably the method you outlined (" make an almost exact replica of a popular video game") has a host of possible problems going beyond the first amendment ... one (of many) might revolve around defeating encryption, for example. Not to mention that it sounds like a tremendous amount of work.

But, taking some liberty and assuming there were none, and assuming you did manage to create a true parody, you can always make a parody of anything and benefit from some protection from copyright and trademark infringement ... parodies are specifically exempt from certain aspects of Intellectual Property law. This particular ruling doesn't change that; it neither strengthens nor weakens the protection you would otherwise have.

Re:So... (2, Interesting)

AK Marc (707885) | more than 4 years ago | (#29578679)

A person is not a copyrighted creative work. A game based on a person (generally a sports game) is more centered on uncopyrightable facts, like game stats, than anything else. There is just enough of a likeness so that if you know who it's supposed to be, you think it looks like them. However, your statement of taking a copyrighted item, making a derivative work and then saying that's the same thing is directly contradictory to law.

Well, this explains why... (1)

lord_mike (567148) | more than 4 years ago | (#29577521)

Madden's "classic teams" all have the wrong numbers on their jerseys... It certainly stinks! Back in the old days, all the football games would have the correct player numbers, even if they didn't have a license for the names. You can't copyright numbers, but, apparently, some people want to. Let's hope this ruling stands.

Copyright Will Eat Itself (5, Insightful)

Bob9113 (14996) | more than 4 years ago | (#29578791)

In this corner, wearing the blue and yellow trunks, weighing in at 800 pounds, he's pure gorilla madness, we have -- Big Copyright!

And in this corner, wearing the green and pink trunks, weighing in at 800 points, he's the thrilla gorilla, we have -- Big Copyright!

Alright gentleman (and I use that term loosely), I want a dirty fight, with obscure legal references, wildly out of control laws, and frequent appeals to artistic freedom, the rights of the performer, and the advance of the useful arts when you really mean "money." We're also going to expect at least $1 million to go to lawyers on each side, and another $1 million each in extra campaign contributions this year. When you hear the bell ring, come out and start working the groin!

Let's get readyyyyyyyyy to rummmmmmbullllll. (am I going to get sued for typing that?)

Having purchased laws sufficient for them to eat their customers and finding their appetite still unsated, big copyright is now using its own laws against itself. There have been a few stories like this recently. That is so awesome. Mmmmm, mmmm, how does chewing on your own leg taste, buddy? Sure am happy to see that your laws are so strict, and your arrogant contempt has grown so complete, that you have actually started hating yourself. Have fun knuckleheads -- I'll be over here watching user generated content.

Thoughts (1)

logicnazi (169418) | more than 4 years ago | (#29579237)

Some quick observations:

  • First judges have generally applied balancing tests between free speech and publicity rights so this means that if this result stands EA would probably still have to shell out to Madden for Madden Football but if you appear as simply a name, likeness and stats on a sports team you probably won't be able to win a lawsuit based on any kind of publicity right. In other words being depicted in the game and being plastered all over the box to move more copies are different things.
  • Surely this is a minimal requirement to have anything like freedom of expression for video games that public figures can be depicted as inhabiting historical/counterfactual situations without requiring any kind of licensce, permission or payment. Otherwise video games would be unable to comment on any issues of public concern or historical interest unless they made all the participants happy with their depiction. If you make an LAPD game you shouldn't need to get OJ's permission to help pursue him in the "high speed" chase.
  • More broadly I feel that any kind of publicity right for public figures going beyond false endorsement style laws is incompatible with the first ammendment. If I want to write a novel depicting Bill Clinton's secret life as a butt kicking comando only good taste and not the law should stop me. Video games deserve no less protection and taken together these two observations essentially eviscerate publicity rights.

To put the point another way: Just because you participated in historical events doesn't give you the right to influence the (fictional) depiction of these events. If you don't like your likeness appearing in the media then don't let yourself become a public figure.

Censorship (1)

dyingtolive (1393037) | more than 4 years ago | (#29579263)

I wonder how this is going to impact censorship? With any luck, the tides are (finally) changing against the Puritan 3% in this country, and we'll be able to get our wholesome drugs and child killing back in Fallout 3.

Can't [celebs] do something else with their time? (1)

coolsnowmen (695297) | more than 4 years ago | (#29580281)

I think there should just be accepted nuance that if you make enough money (say 1 million a year) then you lose the right to bitch about how your 'likeness' is being used.

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