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9th Circuit Court Elevates Celebrity Privacy Rights Over Video Game Portrayals

timothy posted about a year ago | from the adding-devil-horns-should-be-enough dept.

Electronic Frontier Foundation 207

The EFF posted a biting response to yesterday's Ninth Circuit ruling that heavily weights celebrities' right to privacy, and construes that right very broadly. From the EFF summary of the case: "The plaintiff, Sam Keller, brought the case to challenge Electronic Art (EA)'s use of his likeness in its videogame NCAA Football. This game includes realistic digital avatars of thousands of college players. The game never used Keller’s name, but it included an avatar with his jersey number, basic biographical information, and statistics. Keller sued EA claiming that the game infringed his right of publicity — an offshoot of privacy law that gives a person the right to limit the public use of her name, likeness and/or identity for commercial purposes. ... Two judges on the panel found that EA’s depiction of Keller was not transformative. They reasoned that the 'use does not qualify for First Amendment protection as a matter of law because it literally recreates Keller in the very setting in which he has achieved renown.'" The piece later notes that this reasoning "could impact an extraordinary range of protected speech."

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Solution to the problem (3, Funny)

Anonymous Coward | about a year ago | (#44451481)

"Two judges on the panel found that EA’s depiction of Keller was not transformative."

Ok, next patch they will transform his stats to the worst player in the game.

Re:Solution to the problem (-1)

Anonymous Coward | about a year ago | (#44451651)

Judge should of said "hey, you wanted to be famous and have lots of attention, you got it baby, time to take the good with the bad!"

I bet he liked being a celebrity when he fucked the entire cheerleading squad (the basic nature of woman is of a whore that is why rich and-or famous men always have arm candy). He complains now? Wahhh. More pew-pew less QQ.

Re:Solution to the problem (-1)

Anonymous Coward | about a year ago | (#44451787)

Ah yes, the "He doesn't deserve rights because he beat me up in high school" argument. I salute your shrewd legal mind!

Re:Solution to the problem (0)

Anonymous Coward | about a year ago | (#44451881)

Ah yes, the "He doesn't deserve rights because he beat me up in high school" argument. I salute your shrewd legal mind!

ah yes, the "i disagree with him so i absolutely must make this personal and generally act like a catty woman on a shitty reality tv show".

actually in the first year of high school i learned that knocking out one of the jocks makes the others leave you alone esp if you do it in front of their buddies. public schools are like prison, you get no respect unless you "shank" (punch) somebody. i was defending myself against an unprovoked attacker so i feel no remorse about that.

no i have had plenty of opportunities related to my work, to be on TV and get lots of public attention. i prefer being behind the scenes because i don't want this kind of attention. i have a beautiful wife, family who love me and friends i can truly trust. i am satisfied with that. i absolutely DO NOT WANT to go grocery shopping and get mobbed by a bunch of sycophantic celebrity worshippers. so i don't do certain things. i accept it is a package deal and I say no to the entire package. but enough about me, since you felt a need to bring that up. onto the topic at hand:

this guy didn't understand what he was getting into or he decided that the scholarship opportunities and cheerleader access were worthwhile. either way, he has no complaint. it would be like buying a car and complaining that you need to put fuel in it, or buying a computer and being outraged that it needs electricity. makes no sense.

Re:Solution to the problem (0)

Anonymous Coward | about a year ago | (#44451971)

ah yes, the "i disagree with him so i absolutely must make this personal and generally act like a catty woman on a shitty reality tv show".

That's what you did above.

actually in the first year of high school i learned that knocking out one of the jocks makes the others leave you alone esp if you do it in front of their buddies. public schools are like prison, you get no respect unless you "shank" (punch) somebody. i was defending myself against an unprovoked attacker so i feel no remorse about that.

This didn't happen, and every single person who read your post knows it.

Re:Solution to the problem (1)

LocalH (28506) | about a year ago | (#44452131)

How on earth can you "know" that didn't happen?

Coulda swore this was /., not Reddit.

Re:Solution to the problem (0)

Anonymous Coward | about a year ago | (#44452205)

How on earth can you "know" that didn't happen?

Coulda swore this was /., not Reddit.

He's an insecure little man, that's why he acts like one. You can see how desperate he is to put me down in some way or another. So desperate he is willing to be completely and transparently irrational just to try to do it.

Apparently the fact I stood up for myself back in high school bothers him. Maybe he was a coward and has to hate me because I wasn't. See how I said maybe because this is speculation? I don't presume to know his life and neither should he presume to insist he knows mine.

For what its worth i didn't stand up to the jocks in high school because i am so big and badass. I am a nonaggressive person who minds his own business and mostly i just want to be left alone. I stood up to them because i felt like that was better than constantly being harassed and bullied. I expected to get my ass kicked infact, the point was that the other guy might win the fight but he was going to get hurt doing it. Most bullies will look for easier targets since they dont like having to work or take any risk for their jollies. Turned out the jock who acted all badass trying to show off to his friends wasn't really so tough. Also turnedout his friends weren't really friends because they stood there and laughed at him instead of helping him. Neither of those should be a big surprise but at that age i didn't fully understand it.

Re:Solution to the problem (0)

Rockoon (1252108) | about a year ago | (#44452505)

How on earth can you "know" that didn't happen?

Maybe because the only place that the 'jocks' are the bullies is in Hollywood.

Re:Solution to the problem (3, Funny)

dyingtolive (1393037) | about a year ago | (#44452287)

You guys are adorable. Now go back to reddit.

Re:Solution to the problem (3, Insightful)

Schmorgluck (1293264) | about a year ago | (#44451917)

should of

You fail.

Re:Solution to the problem (2)

Oligonicella (659917) | about a year ago | (#44452123)

"I bet he liked being a celebrity when he fucked the entire cheerleading squad"

And you demonstrate that you IQ is equal to your age.

Re:Solution to the problem (4, Insightful)

bitt3n (941736) | about a year ago | (#44452019)

"Two judges on the panel found that EA’s depiction of Keller was not transformative." Ok, next patch they will transform his stats to the worst player in the game.

this is a great opportunity to employ the small penis rule [wikipedia.org] . slightly change the likenesses of the players from reality, and in the stats, just list their penis as 2-inches long.

some are more equal than others (1)

turkeydance (1266624) | about a year ago | (#44451483)

never thought 1984 would skew this way.

Re:some are more equal than others (5, Informative)

GodfatherofSoul (174979) | about a year ago | (#44451547)

Isn't that Animal Farm?

Re:some are more equal than others (3, Funny)

oodaloop (1229816) | about a year ago | (#44451825)

To be fair, I don't recall Animal Farm specifying in what year it took place. Maybe it also took place in the year 1984, albeit in an alternative dimension where animals talked and Oceana wasn't at war with Eastasia.

Re:some are more equal than others (5, Funny)

Anonymous Coward | about a year ago | (#44452027)

Oceania has always been at war with Eastasia.

Re:some are more equal than others (1)

turkeydance (1266624) | about a year ago | (#44452349)

my sarcasm font is disabled. my idea of a little fun. mix 'n match Orwell.

Re: some are more equal than others (3, Informative)

RyuuzakiTetsuya (195424) | about a year ago | (#44451551)

Probably because you're quoting another Orwell work, animal farm.

Re:some are more equal than others (0)

Anonymous Coward | about a year ago | (#44451573)

Especially since it was "Animal Farm" and not 1984.

Re:some are more equal than others (2)

gl4ss (559668) | about a year ago | (#44451579)

yeah and this dude is.. .. a publicly playing dude and the stats are about his public plays, no? I mean, they probably took 'em out of some stats magazine or some shit like that.

Re:some are more equal than others (0)

Anonymous Coward | about a year ago | (#44451765)

Lose the over-the-top misquote.

They were using the likeness of a football player in a football game, and profiting off it. Without licensing.

Re:some are more equal than others (3, Insightful)

HornWumpus (783565) | about a year ago | (#44451959)

A Jersey # and some playing stats, licensed from the NCAA. It's not like they secretly motion captured him with his girlfriend and 'hot chocolated' them.

Sooo (1)

Hatta (162192) | about a year ago | (#44451569)

Bring back Mutant League Football and this won't be a problem.

have nfl blitz come back (1)

Joe_Dragon (2206452) | about a year ago | (#44451599)

That game was fun.

1st and 30

Does this apply to all athletes? (1)

Anonymous Coward | about a year ago | (#44451585)

So, now anyone can make a video game featuring pro athletes?

Re:Does this apply to all athletes? (3, Informative)

phantomfive (622387) | about a year ago | (#44451601)

No, now no one can make a video game featuring pro athletes, without paying each athlete.

Re:Does this apply to all athletes? (1)

XaXXon (202882) | about a year ago | (#44451777)

that's what the unions are for. It's not going to be hard to make a game, but the athletes will be paid for their likeness.

I'm not sure how I feel about this. I don't think that a famous person should have their likeness used for anything any commercial venture wants to use it for. What if they made a baby-killing simulator and used his likeness. Shouldn't he be able to stop that?

With regards to biographies, it seems like that should fall under news/reporting and be excepted.

Hrmm.. I don't know.

Re:Does this apply to all athletes? (1)

sixsixtysix (1110135) | about a year ago | (#44452077)

what if you made a biographical game?

Re:Does this apply to all athletes? (1)

Anonymous Coward | about a year ago | (#44451605)

More like now nobody can without bribing all the players.

Not bribing (5, Insightful)

SuperKendall (25149) | about a year ago | (#44451639)

More like now nobody can without bribing all the players.

How is it "bribing" a player to give them money so in return you have their permission to use their likeness?

If someone created a game that used your likeness wouldn't you think you should at least be asked permission to do so?

Re:Not bribing (3, Insightful)

king neckbeard (1801738) | about a year ago | (#44451793)

If I was awesome in the game, I would be happy that I'm being portrayed as awesome to the world. If I was portrayed in a neutral light, I wouldn't have a reason to care all that much. If I was potrayed as lame, then it would obviously be some kind of parody or other transformation, so while I may be unhappy, I wouldn't have any just complaint.

Re:Not bribing (0)

Anonymous Coward | about a year ago | (#44451821)

And if you were shown as the weak link that costs the game, the criminal or the pedophile? Ah well, just a parody, not real, so who cares, right?

Re:Not bribing (3, Insightful)

CanHasDIY (1672858) | about a year ago | (#44451839)

If I was awesome in the game, I would be happy that I'm being portrayed as awesome to the world. If I was portrayed in a neutral light, I wouldn't have a reason to care all that much. If I was potrayed as lame, then it would obviously be some kind of parody or other transformation, so while I may be unhappy, I wouldn't have any just complaint.

Easy for some nobody, no-name neckbeard to say.

However, if your fiscal security was based on your own likeness, you'd probably be singing a different tune.

Re:Not bribing (0, Insightful)

Anonymous Coward | about a year ago | (#44451961)

No, his fiscal security is based on his continued perfromance. If his face got burnt off and somehow didn't affect his eyesight, he could still play at a high level, likeness has nothing to do with it.

Re:Not bribing (4, Insightful)

king neckbeard (1801738) | about a year ago | (#44452033)

If simply being me was a marketable skill, then I would hope I would be extremely grateful. Currently though, I have to actually be useful to make money.

Re:Not bribing (0)

Anonymous Coward | about a year ago | (#44452345)

Hey, that's King Neckbeard to you. And everyone else on /.

I almost called you out for pointless name calling, but then I read he user name and realized that would be silly.

Re:Not bribing (4, Insightful)

cheekyjohnson (1873388) | about a year ago | (#44452295)

If someone created a game that used your likeness wouldn't you think you should at least be asked permission to do so?

I might prefer to be asked for permission first, but I don't believe that censorship is the answer or that I should be able to stop them from arranging data in a certain way.

Re:Does this apply to all athletes? (2)

XaXXon (202882) | about a year ago | (#44451783)

You would simply go to the players' union and ask for permission. All the players in the union will have pre-agreed to allow the union to bargain for the palyers as a group. That's what unions do.

Re:Does this apply to all athletes? (3, Informative)

Anubis IV (1279820) | about a year ago | (#44451877)

What union? This is the NCAA, i.e. they're in college and aren't employed to play.

For professional sports, sure, but for the NCAA there are strict rules forbidding the players from receiving payments. Licensing their likeness may fall outside the bounds of what's restricted, so it may be possible for them to do so, but there aren't any unions that speak for all of the players. The closest thing is the NCAA itself, but as far as I'm aware (and I may be very mistaken, since I'm disinterested in all of the football fanaticism I see around me in America), the players don't sign away their rights to the NCAA in order to play for their school's team.

Re:Does this apply to all athletes? (3, Insightful)

Dynedain (141758) | about a year ago | (#44452461)

Unions (theoretically) exist to protect the employees against the management through collective bargaining.

Unfortunately in the case of collegiate football, NCAA is the management, and the Universities are the staffing agencies, EA is a 3rd party buying the product, and no-one is representing the interests of the players.

Re:Does this apply to all athletes? (0)

Anonymous Coward | about a year ago | (#44451695)

So, now anyone can make a video game featuring pro athletes?

... and the concept of reading comprehension takes another shattering blow to the jaw ...

Re:Does this apply to all athletes? (1)

icebike (68054) | about a year ago | (#44451827)

So, now anyone can make a video game featuring pro athletes?

These athletes weren't PRO, they were still in college. (Perhaps on a Football scholarship).
But if accepting a scholarship opens your life to every public use under the sun, then we've not only slipped down that slippery slope, we've hit rock bottom.

So its not the same as a pro player being paid to perform.

If it was only the Ninth, I wouldn't worry, but the Third Circuit found essentially the exact same thing for a different player.

Still I find it odd, that this Court, or any Court, asserting any right to privacy issues one one bench while on other benches, they have gaveled down any such right when ever the government wants a peek at your emails.

Re:Does this apply to all athletes? (0)

Anonymous Coward | about a year ago | (#44452031)

Remember Tecmo Bowl for the NES? The player names were the same, but the team logos were made up and IIRC the team names were only the city names and not the actual team names. It wasn't until Super Tecmo Bowl that they got the legal rights.

Well, at least one person is safe (1)

UnknowingFool (672806) | about a year ago | (#44451603)

They reasoned that the 'use does not qualify for First Amendment protection as a matter of law because it literally recreates Keller in the very setting in which he has achieved renown

I guess CowboyNeal is perfectly safe then. I shudder at the prospect of this likeness.

Re:Well, at least one person is safe (1)

MarkvW (1037596) | about a year ago | (#44452257)

You do know that there was a real Cowboy Neal out there--a very famous one. Neal Cassady Jack Kerouac's running partner and an OG of the 'Beat Generation.'

Maybe CowboyNeal is gonna get his ass sued by Neal Cassady's estate!

Not an Orwell moment, let's not reach (0)

Anonymous Coward | about a year ago | (#44451615)

Really not sure where you get the Orwellian connection here: Co was trying to use his likeness without licensing. If they walked up to your door, took your picture, then put you in "Madden Doorbell Ringer 2013" you could sue for the same reasons. This guy wants control over how his likeness and (though somehow not in this case) name is used, whats wrong with that?

Simple Solution (0)

Anonymous Coward | about a year ago | (#44451627)

Seems to be a simple solution for game developers, throw in real stats for all of the players and then have some bot go through the stats and change things slightly, skin color, jersey number, etc. Next thing you know the NFL will be suing them for using the same rules as the "official" game though, "want to use a 120 yard field & six points per touchdown? Fork over $1 million"

Re:Simple Solution (1)

tmorehen (2731547) | about a year ago | (#44451719)

The simple solution is: if you want to make money off my likeness, compensate me.

Re:Simple Solution (0)

Anonymous Coward | about a year ago | (#44452107)

So I guess then there can be no 'based on fact' college sports games any more, since the NCAA takes a dim view on a player being compensated in any way.

Re:Simple Solution (1)

LocalH (28506) | about a year ago | (#44452167)

Next thing you know the NFL will be suing them for using the same rules as the "official" game though, "want to use a 120 yard field & six points per touchdown? Fork over $1 million"

Horseshit. The game of football, using more or less the same "official" rules, predates the existence of the NFL. They would only have a claim over any NFL-specific rules, if even that (with the whole "can't copyright essential game elements, only expressive artwork" deal, they might not have a leg if you make a "Pro Football 2014" with every rule the same as the NFL down to a T, as long as you don't mention the NFL or use any trademarked or copyrighted material while doing so).

Re:Simple Solution (0)

Anonymous Coward | about a year ago | (#44452457)

No, the NFL just wants the money for using the names and likenesses of their established IP, namely the teams, and certain related things, like say, the name of the Superbowl.

Which coincidentally is why a lot of people want to play the game.

So...yeah, fork it over.

somewhat California-specific (4, Informative)

Trepidity (597) | about a year ago | (#44451643)

It's worth noting that the U.S. has no federal copyright-like "publicity right". Authors have copyright, and inventors have patents, but the Copyright & Patent Clause does not authorize any other kind of IP.

California, on the other hand, has a specific law [wikipedia.org] granting celebrities exclusive use over their likenesses. Since it's a state law, in a federal court it prevails unless either it's preempted by a federal law under the preemption doctrine [wikipedia.org] , or violates an incorporated-against-the-states right of the people, such as First Amendment. Here, the court held that California's law didn't violate the First Amendment.

That isn't good, but it doesn't actually mean that celebrities have some kind of inherent or national right to control their likenesses. States which disagree with this kind of outcome should make sure they repeal, or don't pass in the first place, laws like California's.

Re:somewhat California-specific (2)

Trepidity (597) | about a year ago | (#44451705)

[Reply to self]

Oops, I linked the amendment to the California law that strengthened it, rather than the law itself. Here's the full codified law. [ca.gov]

Re:somewhat California-specific (1)

icebike (68054) | about a year ago | (#44451981)

That isn't good, but it doesn't actually mean that celebrities have some kind of inherent or national right to control their likenesses. States which disagree with this kind of outcome should make sure they repeal, or don't pass in the first place, laws like California's.

It isn't exactly BAD either.

First, in the present case(s), these were college kids, playing in what is nationally asserted as a non-pro setting.

But also, it seems quite obvious that such rulings asserting some semblance of privacy are long overdue.
The violations of all norms of behavior often goes to absolutely ridiculous extremes [huffingtonpost.com] , which makes it pretty much
a necessity for government to step in and even the playing field. Hence California's Paparazzi Law [huffingtonpost.com] .

Re:somewhat California-specific (1)

lord_mike (567148) | about a year ago | (#44452343)

Most states have some sort of right of publicity legislation. It varies from state to state, but pretty much every state recognizes this right.

Re:somewhat California-specific (2)

westlake (615356) | about a year ago | (#44452411)

That isn't good, but it doesn't actually mean that celebrities have some kind of inherent or national right to control their likenesses. States which disagree with this kind of outcome should make sure they repeal, or don't pass in the first place, laws like California's.

Because the state doesn't want the resident celebrity whose image is bankable and therefore taxable --- along with everything else he brings in.

Sports sim fans are fanatical about rules, teams, leagues, players, stats, uniforms, stadiums and so on. What they want is the authentic game day experience. If you fake it, you lose them. That is why you pay for the rights to everything.

It's really quite amusing to see the geek defend EA's right to a free ride.

Well the obvious answer then... (0)

Anonymous Coward | about a year ago | (#44451661)

Is to make a video game featuring exact likenesses of these 2 judges in a cort room pleasuring a giant penis with assorted comporate logos on it. "very setting in which he has achieved renown"

Why Should EA Profit from His Likeness? (5, Insightful)

nephorm (464234) | about a year ago | (#44451677)

This isn't a matter of parody or satire; this is EA making money from the likenesses of people they never compensated. It is akin to creating a CGI representation of an athlete or celebrity and using it in a TV commercial.

Re:Why Should EA Profit from His Likeness? (1)

king neckbeard (1801738) | about a year ago | (#44451879)

Why shouldn't they be able to profit from his likeness? It doesn't imply an endorsement of EA or anything else. It portrays him as he is.

Re:Why Should EA Profit from His Likeness? (1)

phantomfive (622387) | about a year ago | (#44452119)

All the same, it seems fair that if they use him in a game, he should get a cut of the profits.

Re:Why Should EA Profit from His Likeness? (2, Informative)

Frobnicator (565869) | about a year ago | (#44452165)

I have to agree with the third judge on the panel. They aren't profiting from his likeness. They are profiting from the NCAA statistics.

They have a contract with the NCAA to use NCAA stats. The numbers are all NCAA statistics.

If we follow the majority judges' logic to the end, groups will be unable to publish statistics on the players unless they have an agreement with every player. Agreements with the league about the league's statistics are no longer good enough. Sorry ESPN, your costs just went up.

Re:Why Should EA Profit from His Likeness? (1)

bitt3n (941736) | about a year ago | (#44452109)

It is akin to creating a CGI representation of an athlete or celebrity and using it in a TV commercial.

that doesn't seem like a particularly accurate comparison. one is likely to believe the CGI representation is the actual person, whereas no one playing Madden thinks he's actually controlling Tom Brady.

Re:Why Should EA Profit from His Likeness? (0)

Anonymous Coward | about a year ago | (#44452193)

It is akin to creating a CGI representation of an athlete or celebrity and using it in a TV commercial.

that doesn't seem like a particularly accurate comparison. one is likely to believe the CGI representation is the actual person, whereas no one playing Madden thinks he's actually controlling Tom Brady.

I don't think you really understand the purpose of advertising. Advertisers don't get celebrities to endorse products because they think people will say "Lady Gaga uses that deodorant! I'm going to get it and smell like her!" (Chances are she doesn't use that brand.) Instead, there's two goals:
1) associate a product with someone you like or trust
2) get you to remember that product by associating with someone you know

#1 makes you more likely to buy that product when you see it in the store; you won't think of Lady Gaga when you see the brand she endorsed next to random brands, but it will be in the back of your head that you somehow trust that brand because you like Lady Gaga. #1 is the same idea: people are more likely to buy a brand they've heard of or remember, and if Lady Gaga endorses a brand, you're much more likely to remember it than if some random person is on the ad. In short, the CGI celebrity can accomplish the same goals as the real one.

So...why is the original correlation valid? The game is trying to make you think of real football. How can you do that? Easy, use real players. Then you will think the game is more realistic because it has people that look just like the ones you know and love.

Re:Why Should EA Profit from His Likeness? (1)

cheekyjohnson (1873388) | about a year ago | (#44452307)

Why not? I think this is about as nonsensical as copyright and its poisonous ilk.

Re:Why Should EA Profit from His Likeness? (0)

Anonymous Coward | about a year ago | (#44452463)

Why are newspapers and magazines able to print photos of celebrities without compensating them? If paparazzi can basically stalk a celebrity to get their photo for a magazine and be protected by the first amendment, why can't EA use information that's part of a television broadcast to create a depiction of someone?

All men are equal, but some more equal (0)

Anonymous Coward | about a year ago | (#44451691)

Watch for laws that apply only to some people.

NSA spies on Bill Clintons emails (and likely politicians in general), on soldiers sex talks to their wives back home, on journalists phoning their newspapers, and still insists it 'never' abuses all this data its been illegally collecting, which of course is untrue.

Which of these do you think would get special protection? I think politicians will write themselves special privacy protection from the NSA and they'll think that's fine, forgetting that everyone of them was an ordinary person before they became a politician.

I also think they're really dumb, XKeyscore 'logs' searches only because General liar Alexander decided it does. I bet he has versions that don't log squat he uses for his personal politics. Because the idea that everyone in the NSA is a saint, and everyone outside is a potential terrorist, doesn't wash.

http://www.techdirt.com/articles/20130731/16193324027/nsa-boss-insists-that-analysts-cant-abuse-surveillance-systems-forgets-to-mention-that-they-have.shtml

What about actors, etc? (0)

Anonymous Coward | about a year ago | (#44451699)

I'm not sure how this ruling can be made. Biographical info, statistics, sports number... All facts and publicly available.

So is IMDB now illegal? It publishes similar info about actors/actresses/has-beens.

Re:What about actors, etc? (1)

pspahn (1175617) | about a year ago | (#44451795)

IMDB publishes public information about works of entertainment. NCAA Football is a fictional representation based on works of entertainment.

IMDB is fine to publish factual items about "The Phantom Menace", but they can't publish a video game based on the same thing.

It will be interesting to see how this might affect fantasy sports games, but I suppose they differ in the simple fact that the video game creates an alternate and fictional world where these people exist, rather than simply taking the public statistics and known abilities and running math on the results.

Right for privacy!? au contraire (1)

El_Muerte_TDS (592157) | about a year ago | (#44451731)

Keller sued EA claiming that the game infringed his right of publicity

It's about the right for publicity, not the right for privacy.

Re:Right for privacy!? au contraire (1)

CanHasDIY (1672858) | about a year ago | (#44451871)

Keller sued EA claiming that the game infringed his right of publicity

It's about the right for publicity, not the right for privacy.

Correct - it is against the law to use someone's likeness without getting their permission first; notable exceptions such as parody excluded.

As it should be.

Re:Right for privacy!? au contraire (1)

Schmorgluck (1293264) | about a year ago | (#44452015)

I know I'm nitpicking, but it's more the notion of satire than that of parody that apply here.

Yes, publicity means privacy in this context. (1)

Valdrax (32670) | about a year ago | (#44452003)

The right of publicity is essentially the right to control commercial use of one's name, likeness, and reputation. It is the right not to be exploited for sensationalist profit. Is the right to control what words people try to put in your mouth -- what people try to claim that you endorse or support. This is part right now that people are railing against -- the notion that profit trumps speech.

However, there's another side to the publicity coin, and that's the right to be left alone. The right not to have one's likeness and life drug through the public eye without some kind of public merit. It's based on the notion that we have a natural right as to how and whether aspects of our lives are communicated to the public. It's very closely related to the doctrines behind prohibiting slander and libel. That side is very much about privacy.

The general causes for action under the notion of right of publicity are:
1) Intrusion upon physical solitude.
2) Public disclosure of private facts.
3) Depiction in a false light.
4) Appropriation of name and likeness.

While this case is about #4, #1-3 are essential privacy rights, and while the EFF is not arguing against them, I worry that weakening appropriation weakens false light, disclosure, and intrusion torts.

As to the case at hand, in general, commercial speech gets the lowest protection by the First Amendment. Privacy trumps profitable speech, but much like defamation law, the protections weaken the more political and public your life is and the closer the speech comes to political or academic speech, until it comes to the point that politicians essentially have no right of publicity, which is frankly the way it should be.

I agree with the decision (0)

Anonymous Coward | about a year ago | (#44451737)

Actors, news anchors, sports superstars, etc. all make their living on the image broadcast in the media. You can't use an actor's likeness to sell a product unless you contract with the actor to do it. If EA wants to use his likeness, pay him for it.

Secondly, it's about time that college players start getting a cut of the billion or so amount of money that the NCAA and colleges having been raking in over the last couple of decades.

Re:I agree with the decision (1)

king neckbeard (1801738) | about a year ago | (#44451941)

I think it's a mistake to conflate an endorsement with all usage of likenesses. This isn't Coca Cola placing his face in an ad for Powerade, this is a video game company making a realistic football video game.

Look, EA deserves far worse than this to happen to them. I hate them with a fiery passion, but they are actually right on this.

Re:I agree with the decision (2)

vux984 (928602) | about a year ago | (#44452053)

this is a video game company making a realistic football video game.

So... taking all the college players stats for the last 50 years, randomly assiging them jersey numbers, skin tones, eye colors, heights, and phsyiques would result in a realistic player pool from which to create a realistic football game.

Why exactly does the jersey number, physical profile and football stats all need to line up to a very particular and easily identifiable individuals?

That's not "realistic" football players, that's "real" football players. And they deserve to get paid.

Re:I agree with the decision (1)

lord_mike (567148) | about a year ago | (#44452403)

The players do get a cut of the money that the NCAA makes on the games. They not only get scholarships, but they get new facilities, equipment, training staff, etc. The money that comes from big name programs goes right back into big name programs. Very few athletic programs actually make a profit. Most lose money. Why? Well, the non-revenue sports such as women's volleyball, crew, soccer, etc. can get very expensive, too, and football and/or basketball subsidize those sports. In many schools, even football loses money, since it is the most expensive sport of them all. This idea that schools are raking in the dough while these poor athletes suffer being treated as gods on campus is an erroneous one. Unfortunately, it seems that the courts are really being affected by the sob stories instead of reality. The result is that we, the ordinary consumer, lose. There will be no more historical games, not just in sports, but anything involving the last century involving any real people. The dissenting opinion stated that under this ruling, the movie Forrest Gump would have been illegal. Historical sporting games are out, of course, and any current realistic amateur sporting games are also toast. It's a broadly dangerous ruling that pretty much tramples historical legal precedent on the first amendment. I hope that someone takes this appeal and somehow rights this wrong, but I doubt it. I don't think the judges are aware how broad and artistically stifling this ruling is.

how is that going to work? (0)

Anonymous Coward | about a year ago | (#44451771)

had they used his name I could understand, but jersey number? theres not a whole lot to chose from, and how different from some real player must the stats be to not infringe?

The EFF is wrong here (0)

Anonymous Coward | about a year ago | (#44451803)

This is about EA profiting from the likeness of unpaid, uncompensated NCAA players, something that EA and the NCAA have been doing for a long time. Just watch Crack Baby Basketball episode of South Park for the satire of this. I don't think this has anything to do with free speech so much as blatantly profiting from someone's likeness without compensating them.

Pay or not to pay, that is the qq. (2)

Impy the Impiuos Imp (442658) | about a year ago | (#44451835)

You use the man because he's famous at a sport, pay the man because he's famous at a sport.

It's not really any different from trademarks. You can blabber about Harry Potter all day. You just can't write a story then sell it without permission.

Football games are not public events in the same sense as a fight in a street is.

Nothing to see here, move along.

Re:Pay or not to pay, that is the qq. (1)

Anonymous Coward | about a year ago | (#44451977)

It's far more complicated. If you're a member of the NCAA, you are barred from profiting from ones likeness related to the game of non-professional football. Only the NCAA and/or schools can profit from your likeness. Sam Keller is trying to do an end run around the NCAA.

Re:Pay or not to pay, that is the qq. (1)

Schmorgluck (1293264) | about a year ago | (#44452055)

I agree with the sentiment of your post, but oh boy do you mix up three totally unrelated notions: right to one's own image, trademarks, and unauthorized derivative works.

Re:Pay or not to pay, that is the qq. (1)

lord_mike (567148) | about a year ago | (#44452419)

And yet, on the same day, this same panel ruled against Jim Brown's likeness lawsuit against EA, saying that personal trademarks were not violated by EA's Madden all star team.

I thought the NCAA owned his likeness (0)

Anonymous Coward | about a year ago | (#44451853)

Doesn't the NCAA have all athletes sign away rights to their own likenesses? Does that really not cover this "right of publicity"?

http://www.bloomberg.com/news/2013-06-19/ncaa-6-4-billion-threatened-by-suit-over-player-likeness.html

Also, these judges clearly do not understand "transformative use" or they do not understand the very nature of video games. While the game has recreated his look, jersey number, and copy/pastad his stats it is not done to "recreate reality" as evidenced by the fact that I, as a player, can make this avatar run plays that he never has run nor ever would run. I could make this avatar do all sorts of crazy shit in a video that he never has nor will ever do in real life. Actions that the video game player takes or could take are also part of the video game itself.

I'm not with the EFF on this one (5, Interesting)

Dynedain (141758) | about a year ago | (#44452049)

I like to support the EFF, but I'm firmly in the camp of the athlete in this. Basically, collegiate athletes are unpaid, and the schools make tons of money off of their celebrity status. Then, EA swoops in and makes a contract with the private governing organization (NCAA) and gets to make even more money off of it. It's a guaranteed revenue stream as each year they release a new title with simply updated bitmaps and adjustments to values in the stats database. The NCAA gets a big fat chunk of profit (which they don't distribute). The schools also get big fat chunks of the profit (for using the school's trademarked logos and identities) but we somehow pretend that the athletes are amateurs and shouldn't be compensated beyond their education (which is little more than a rubber-stamped diploma).

I think it's atrocious, and I'm hoping this lawsuit shakes up the system substantially. The NCAA are the ones most at risk here in the fallout. EA won't be hit nearly as hard since this isn't their only major franchise, and the schools will still be able to license they way they always have.

Disclaimer - I'm a fan of collegiate football.

Re:I'm not with the EFF on this one (0)

Anonymous Coward | about a year ago | (#44452209)

The difference is that the schools compensate the athletes with a free education. That is not "unpaid." Just line up the millions of students who will have $25-50k in debt after their education and see if they don't think getting a free education is a pretty good deal.

EA, however, gives the students nothing. They profit from the students' hard work without giving them a dime. Oh, sure, they pay the NCAA, but that doesn't do much for the kids.

Re:I'm not with the EFF on this one (2)

Dynedain (141758) | about a year ago | (#44452337)

The amount they get in a "free education" is far below what they could get from endorsement deals.

Furthermore, they're expected to spend all their time in training, practice, competition, etc., and are given very simple course loads which they are often just credited without doing any coursework. What is the value of the education in that scenario? When these kids break a bone as a rookie in the pro leagues, ending their career, how many say "Well at least I have a BA in > from > to fall back on?"

Hence my comment about rubber-stamp diplomas that provide these athletes with very little.

Granted, in the less popular sports, the athletes aren't getting as much "free education" or at least realize they have fairly little athletic earning potential over their lifetimes and so focus on their academics. Prestigious degrees are far more common in athletes outside of football and basketball.

Re:I'm not with the EFF on this one (0)

Anonymous Coward | about a year ago | (#44452471)

The amount they get in a "free education" is far below what they could get from endorsement deals.

You write that only thinking of the schools and players in the "Power Conferences". And even out of those schools, only a fraction of those players are superstars that could make significantly more in endorsement deals. No one, outside of their family and friends, is interested in the 3rd string defensive tackle or the six guys on the basketball team that never enter a game unless it is a blowout.

The vast majority of schools never have their games televised on a major network. The overwhelming majority of "student-athletes" would never command endorsement deals that would equal their tuition cost.

Re:I'm not with the EFF on this one (0)

Anonymous Coward | about a year ago | (#44452529)

Yeah, those kids you're talking about don't get full scholarships. They get brain damage, but not even healthcare that covers the recurring problems.

And yes, the value of their education is substantially less than a real education in every metric but bullshit tuition dollars.

Re:I'm not with the EFF on this one (0)

Anonymous Coward | about a year ago | (#44452215)

Just because the NCAA is atrocious (I agree) doesn't mean this ruling is right. Two wrongs don't make a right. A bad ruling is a bad ruling even if it helps someone you like. On top of that your shakeup wouldn't come. The result will be that this will be added to the release that athlete sign to play. Nothing more.

Re:I'm not with the EFF on this one (1)

Dynedain (141758) | about a year ago | (#44452341)

NCAA is being sued in this as well and the damages could be astronomic for them.

Re:I'm not with the EFF on this one (1)

Dynedain (141758) | about a year ago | (#44452399)

And I don't think it's a bad ruling and I think the EFF is putting up a strawman argument. I think Zuckerburg should have seen compensation for The Social Network. It's clearly based on him, makes up things about him, and

Now I think he was smart in not making too much stink about it (which could have backfired in his IPO scheme and damaged the Facebook brand), but if he did, I think he would have been in the right, as much as I may not care for him personally.

In my opinion, reporting, repeating, or declaring facts is "fair use" (for lack of a better name). Placing the likeness or name of a real person in a fictional setting for profit should be protected. This is why movies love to use the disclaimer "All likeness or similarities to real people is unintentional."

If you publish a book with Harry Potter characters without getting permission from JK, are you going to get in trouble? Why should it be any different because you're using real people instead of fictitious characters?

Re:I'm not with the EFF on this one (1)

cheekyjohnson (1873388) | about a year ago | (#44452513)

Why should it be any different because you're using real people instead of fictitious characters?

What if the reader doesn't think that using fictional characters should result in someone getting punished? In that case, your question kind of becomes pointless.

Re:I'm not with the EFF on this one (1)

dyingtolive (1393037) | about a year ago | (#44452323)

I just mentally changed all the words in your post to the equivalent relevant to the music industry.

I wonder what would happen if someone made a game where they used unlicensed likenesses of bands, without using their actual music.

This is probably off topic. :(

What Goes Around... (1)

magusxxx (751600) | about a year ago | (#44452189)

I wonder what would happen if you made a video game about a courtroom and made the judges look like judges in real life. And then have those judges make legal decisions they normally wouldn't make. Even show some taking bribes to throw cases. As long as they're in the setting they've achieved renown in, all's good. Right?

Re:What Goes Around... (1)

bws111 (1216812) | about a year ago | (#44452229)

Since the judges said that the athletes could not be exploited like that I find it unlikely that they would think it 'is all good'. Did you have a point, or did you just fail reading?

Re:What Goes Around... (1)

magusxxx (751600) | about a year ago | (#44452327)

I read the linked article and find my original statement as compared to the Brown vs Electronic Arts case to be on point.

South Park (0)

Anonymous Coward | about a year ago | (#44452231)

It's sad when an episode of South Park makes this subject more clear.

NCAA contract (1)

gerardrj (207690) | about a year ago | (#44452265)

If the NCAA endorsed and has a licensing deal with EA then all the NCAA has to do is change the contract with the players: You agree that EA may use you likeness and personal statistics for the purposes of creating video game characters.

Boom: you want to play NCAA basketball, you have to agree to this. Don't agree? don't play.

Re:NCAA contract (1)

bws111 (1216812) | about a year ago | (#44452313)

There is currently an antitrust lawsuit against the NCAA. That sort of move would not help their position.

Is Sam Keller transgender? (1)

viperidaenz (2515578) | about a year ago | (#44452277)

The summary refers to "his jersey number" and "her name"

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