Judge Rules Games Are "Expressive Works" 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.
No shit sherlock (Score:4, Insightful)
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 (Score:5, Insightful)
Re:No shit sherlock (Score:5, Interesting)
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.
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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
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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
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*golf clap*
Anyone who posts AC and is illiterate enough to say "except for you're opinion" can be dismissed out of hand. Somone saying that, followed by calling a poster who majored in art "ignorant", is actually hilarious.
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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?
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This might be valid as the starting point for a discussion if you're sitting in Philosophy 101
Not philosophy class, art class. If there's a court case, they'll call an expert witness; someone with a PhD in art history.
[OT] What is art? (Score:2)
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.
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"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
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The archetect is the artist, the skilled carpenters, welders, stone cutters, and masons are craftsmen.
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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.
When I see good architecture I think "oh, that's pretty". When I see the craftsmanship that went into it, that's what takes my breath away. Therefore, by your assertion, the architect is not an artist, the craftsman is.
Re:No, that's "good" art vs "banal" art. (Score:4, Insightful)
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.
No, that's the difference between good art and banal art. NOT the difference between art and not-art.
I heard a definition of art the other day that really seemd insightful (I studied art in college).
That's nice. Lots of people have studied art in college, and actually create art, and have a much broader and less elitist view of the definition of art.
Personally, I like Scott McCloud's definition of art: Everything that isn't directly and solely related to the base acts of survival and reproduction is art.
And a friend of mine, who is a professional artist, gets offended when I tell him that definition because in his view, the act of human reproduction is inseparable from art. His definition is even more expansive than McCloud's.
But hey, you studied art in school and thus can tell what is and isn't art based on how good it is. Tell me, by your own definition of art, have you ever created any? And does your answer imply that you are qualified to judge or not?
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I tend to think of art as something that is purposefully created with the intent to express some aspect of the human experience. Art shou
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Come on now, there's no point to having a term "art" when you use it as a synonym for "almost everything that anybody does." When you refuse to define art specifically you're really just saying "oh look, EVERYTHING is beautiful, ART is beautiful, thus EVERYTHING is ART!" It's a very feel-good definition... but what's the point of having the term in the first place?
But obviously not EVERYTHING is art by even this expansive definition. The point is that art is the things that we do that aren't what every oth
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You're confusing an artifact with art.
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You're confusing art with your personal opinion of what constitutes good art.
Whoever told you in school that art is only art if it's good art, and that if you don't like the art you can claim that it isn't art, was wrong.
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I tend to think of art as something that is purposefully created with the intent to express some aspect of the human experience. Art should invoke emotion... and that emotion should match (somewhat) up to what the artist intended. I say somewhat because the interpretation of art is subjective, and not everybody can get at the artist's intention... but they still form a seemingly close reaction.
Congrats, you get it!
I think that the motion/intention matching is important in order to distinguish art that succe
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I had a chance to see many of his works when they were building the Van Gogh museum and the paintings did a world tour. Many were indeed breathtaking. On in particular stood out to me -- it was visible way on the other side of the room, opposite the room's entrance, was the limb of a cherry tree in bloom, photorealistically rendered. Up close it was completely abstract; up close you wouldn't ba able to tell what it was a panting of.
And... you know that the emotion you experienced resembled the emotion he wa
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By your own definition of art, have you ever produced any?
I like to think I have. I didn't just "take a few courses", it was my major.
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I like to think I have.
Well as a purely hypothetical exercise to illustrate my point, let's say I saw your "art", and did not find go "WOW!" Would I then be completely correct to say that it isn't just art I don't like or don't approve of or don't think fits my personal subjective measure of sufficient emotional impact... but rather that it isn't art at all? And that, therefore, you are not and have never been an artist?
Or would that just be pretentious douchebaggery on my part?
In reality, I don't have
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And in what course was it, exactly, that you were taught that if something ostensibly claimed to be art is not sufficiently moving, or if it moves you differently than the artist intended, that it isn't art? What professor was it who told you that bad art == not art?
More than one professor in more than one class. You hear it most often in an art history class. Of course, art history is taught by PhDs, who are too educated to do anything but teach art history. The working professors (all of mine had works in
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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 (Score:5, Insightful)
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I think Jim Brown and Herb Adderly could best support this cause by funding an open source American football game, featuring every NFL team but leaving the names off the jerseys. Either the game companies would have to pay the unlicensed players or EA sports would no longer be the only company that can make an NFL football game. We'd win something.
EA would probably use their leverage with MS and Sony to ensure that it never gets onto either console.
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Do you think the same about music?
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What about movies? Theatre? Magazines? Newspapers? Websites? All of these would fit your definition.
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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.
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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.
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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
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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.
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not if they are not actually present in the movie/game...
you don't get licenses for things that are merely representations of likeness.
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Taken from Wikipedia [wikipedia.org]
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Choosing to not use someone's image out of respect is quite distinct from not being allowed to use someone's image.
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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 li
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What huh? (Score:4, Interesting)
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.
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And an artist who paints a painting doesn't sell it for profit?
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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.
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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.
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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.
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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.
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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?
Yeah (Score:1, Funny)
As a player, you don't own your own image (Score:5, Informative)
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.
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I wouldn't accuse the NCAA of decency; what they fundamentally are is a way to provide professional sports without paying the players much. They do have to keep up a clean public image, though, or more people will start wondering exactly what the rules and regulations are for.
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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?
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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
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Shorter version: thousands of people watch college sports on campus, thousands more on TV, schools and coaches make millions - and the players that people turn out to see are the lowest paid people in the building. Pretty sad that someone working concessions at Podunk U makes more money than a starting player for a Big 10 university.
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So... (Score:5, Interesting)
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Re:So... (Score:5, Insightful)
This ruling is actually arguing that you don't need any license at all, from anyone, because it's First-Amendment-protected expressive speech.
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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 no
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Facts and figures are not copyrightable (Score:4, Insightful)
Facts and figures cannot be copyrighted. And how can public information be abused? They just want money.
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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!
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Sorry, my copy of the Constitution seems to be out of date, could you cite the full text of the Right of Publicity amendment?
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So if it doesn't say I can't have a pony, that means I can have a pony?
Well I want it, and I want it right now.
Finally computer artists get some credit (Score:2, Insightful)
Awesome... (Score:5, Funny)
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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
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Oh man that's awesome.
I can only hope you can gain abilities like Flagrant Elbow and Incredulous Expression at Foul Call.
Open to competition (Score:3, Insightful)
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.
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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 (Score:2)
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.
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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!)
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Anyone has always been able to produce their own sports titles. They just weren't able to use actual player data. I dunno why that's a big deal. Personally I've always felt that games like Super Baseball 2020, Mutant League Football/Hockey, and the Mario Sports series were superior games anyway.
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Perhaps for the US. However, the only sports games I've played in the past 5 years have been the other football (i.e. soccer) games, and the vast majority of those players are not governed by US laws, but by other IP laws.
On the other hand... (Score:2, Insightful)
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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.
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Given the demographics of /. readers... (Score:2)
Well, this explains why... (Score:2)
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 (Score:5, Insightful)
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 (Score:2)
Some quick observations:
Censorship (Score:2)
Can't [celebs] do something else with their time? (Score:2)
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.
The stretch of copyright (Score:2)
It's striking how far copyright is stretched in the entertainment industry. It goes way beyond "Look and Feel". You can't write a third-party "Harry Potter" book. "Quantum of Solace" has nothing but the title taken from the Ian Fleming short story. (Few people have ever read that short story, which consists of some British Brahman in a Caribbean outpost of the British Empire telling Bond a story about someone's failed marriage.) Yet copyright has been held to cover such a long reach.
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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 infringe
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If someone has the right to control and profit from their own image in a mass-produced, for-profit, magazine, poster, or other publication then the same should apply to games.
Except for the fact that you just made up that "right" and it doesn't exist.
Unless you think the Paparazzi pays celebrities for those candid photos they take. Or everyone who ever wrote a biography of a president paid that president a portion of their earnings.