Friday, March 29, 2024
 

Right of Publicity As Copyright?


In a class-action lawsuit filed in 2009, former Arizona State quarterback Sam Keller sued Electronic Arts, the National Collegiate Athletic Association and the Collegiate Licensing Company, claiming that they illegally profited from the images of college players portrayed in the games NCAA Football and NCAA Basketball. Although the players’ names are not used in the video games, Keller and his supporters argue that the players’ rights of publicity have been infringed because in most cases the virtual players in the video games have the same jersey number, height, weight, home state as the real college athletes.

This past February, a United States District Court judge rejected a request to dismiss the case, arguing that Electronic Arts did not sufficiently “transform” the images into a work that would qualify as free speech. Keller and his supporters argue that the video games in question are not protected by the First Amendment because the company was using the likenesses of college athletes for purely commercial gain.

What does this mean? Arent Fox has a good summary:

The February 8, 2010 ruling means that EAI could be found liable for violating college players’ rights of publicity through its use of their likenesses and characteristics in its NCAA Football video game. While this would be a huge financial blow to EAI, the ultimate importance of this case lies in the court’s analysis of the publicity right claims and the guidance it provides regarding how closely a video game avatar can be modeled on a real life individual before violating that individual’s publicity rights.

Keep in mind that in some legal circles, the right of publicity is considered an intellectual property right.

Via the paper of record.

 

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