College Athletes and Video Games

Originally, I intended to do an article on the Chromecast and its legal implications.  I just received mine, and partially wanted to share my thoughts and impressions.  Instead I’ll just give a brief review: the device works like a charm.  If you need an easy way to stream Netflix and Youtube onto your TV, this is probably the cheapest and easiest way to do so.  Hopefully it will have support from some other services soon.

Now, on to the topic at hand.

This week presented a very interesting case in the world of sports video games.  A former quarterback named Samuel Keller (who played for Arizona State and Nebraska) sued Electronic Arts (EA) over their use of his likeness in their college football game (called NCAA Football).  EA claimed, as a defense, that their use of Keller’s likeness is protected by the First Amendment as a form of artistic expression.  The Ninth Circuit Court of Appeals held that the digital representation of Keller came close enough to the real Keller to reject EA’s First Amendment defense.

Before moving on to the legal reasoning, there is one matter that requires clarification.  The college sports games do not use the actual athletes in their games in the same manner as the professional sports games.  For example, Robert Griffin III is Robert Griffin III in the upcoming version of Madden.  The NCAA version of the game from Griffin’s final year in college, however, would use an individual with similar abilities as Griffin with a different name and slightly altered appearance.  The reasons for this have to do with the NCAA’s amateurism rules (which are extremely convoluted and beyond the scope of this article).

The Ninth Circuit, in this case, used California’s “Transformative Use” test to make their determination (for the record, the original suit was filed under California Civil Code section 3344).  For this test, the court seeks to balance the First Amendment right of the defendant against the right to publicity right of the defendant (COMEDY III PRODUCTIONS, INC. v. GARY SADERUP, INC., 25 Cal. 4th 387 (2001)).  The court then lists five factors for determining whether a transformative use occurs: 1. if the use of the celebrity’s image only provides the “raw material” from which the original work is synthesized, rather than being the “very sum and substance of the work in question”, 2. if an individual is likely to purchase the work for the celebrity or for the expressive work of the artist, 3. the number of imitations in the work, 4. the economic value derived from the use of the celebrity’s likeness, and 5. how much the artist’s skill was put towards recreating the celebrity.  The court ended up holding that EA’s use of Keller’s likeness was not transformative since EA sought to “[recreate] Keller in the very setting in which he has achieved renown.”  Basically, the Ninth Circuit felt that simply changing Keller’s name, appearance, and some basic biographical details was not enough to be transformative due to the fact that the game recreated Keller in other ways (his physical abilities and skills as a football player) that were related to his public persona.

Some parties, including the dissent in the case, point out some interesting legal implications to this ruling.  Both the Electronic Frontier Foundation (EFF) and Annalee Newitz over at io9 worry that this ruling could impact fictional representations of real people.  The majority, in footnote 10 of the opinion, believes that the requirement to evaluate whether the likely purchaser’s motivation was to buy “a reproduction of a celebrity or the expressive work of the artist” sufficiently limits this holding.  Basically, the majority feels that EA’s desire to “reproduce reality” (as mentioned in the opinion) distinguishes this case from other fictionalized representations of real people.

Like the EFF, I find the majority’s reasoning lacking here.  There are many fictional representations of real people that seek to recreate the setting in which they achieved renown, some of which go to far fewer lengths to change their representation of the real person in question (the EFF uses The Social Network and Mark Zuckerburg as an example, but almost any unauthorized biopic would seemingly qualify).  The majority also seems to neglect that NCAA athletes have a limited economic interest in their likeness due to the NCAA’s amateurism rules: they are not allowed to profit off their likeness while playing NCAA sports.  The majority felt that, since the athlete may eventually profit from their appearance after they leave the NCAA, they should be able to assert their right of publicity when still playing college sports.  This completely neglects the fact that many do just that with these very games: the player placed on the cover is always a prominent player who recently left college to play professionally.  Furthermore, this particular situation (an individual who can’t profit off their likeness now but may be able to do so later) potentially applies to many people.  There is no shortage of people attempting to break out in music, acting, sports, or other forms of entertainment who might have signed documents limiting their right to profit off their image in some respect.  Without a limiting principle, this ruling potentially touches on many other works (such as speculative fiction, as io9 points out).

Another interesting note, this court would have likely held differently if this case was tried under federal law (instead of California law).  There was a very similar case against EA by Jim Brown (the famous Cleveland Browns running back) a little while ago, where EA’s use of Brown’s image was upheld under the Lantham Act (the federal trademark law).

Now, with all that being said, I think the Ninth Circuit had other reasons for reaching the ruling that they did that they didn’t mention in their opinion.  The majority here focused quite a bit in their language on the commercial nature of the use, without citing that as a major reason for holding as they did.  The majority focused more on how EA sought to recreate NCAA football in a realistic manner.  The inherently commercial nature of that recreation appears to distinguish a game like Madden from other works with representations based on real people (say The Social Network or even a Grand Theft Auto game that employs a representation of a real person).  A sports game, by its nature, relies much more heavily on accurately recreating real people for the very simple reason that gamers want an accurate representation of the players and teams.  Other works rely a lot less on these recreations than sports games.  For example, a Grand Theft Auto game may include a recreation of a famous person portraying a gangster from a famous movie but that is unlikely to be the major reason the gamer purchases the game.  What I can’t figure out is why the court didn’t lean more heavily on this logic (it is the fourth factor of the test after all) to state why they felt rejecting EA’s First Amendment defense didn’t impact other works, if only to rebut the dissent’s arguments.

It should be interesting to see if any other individuals make the argument for the more expansive ruling in the future.  Given the nature of some celebrities (and the major lawsuit led by Ed O’Bannon against the NCAA), I wouldn’t be surprised if this issue comes up again.

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