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The Courts Games

Judge Rules Games Are "Expressive Works" 157

Posted by Soulskill
from the decision-pending-on-wetness-of-water dept.
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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Judge Rules Games Are "Expressive Works"

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  • No shit sherlock (Score:4, Insightful)

    by aussie_a (778472) on Tuesday September 29, 2009 @12:08AM (#29576615) Journal

    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?

    • by Kinky Bass Junk (880011) on Tuesday September 29, 2009 @12:59AM (#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 (Score:5, Interesting)

        by unlametheweak (1102159) on Tuesday September 29, 2009 @01:18AM (#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.

      • by stephanruby (542433) on Tuesday September 29, 2009 @01:25AM (#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: (Score:3, Interesting)

          by AmberBlackCat (829689)
          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.
          • by Danse (1026)

            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.

      • by MrMista_B (891430)

        Do you think the same about music?

      • by bogjobber (880402)

        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: (Score:3, Interesting)

        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
      • 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.

      • by noundi (1044080)

        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: (Score:2, Insightful)

        by Kashgarinn (1036758)

        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

      • by mcgrew (92797) *

        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.

        • by nelsonal (549144)
          I think he meant greeting cards like those produced by Hallmark and American Greetings.
      • by PitaBred (632671)
        Yeah. Movies could NEVER be art. Nor could symphony music.
    • What huh? (Score:4, Interesting)

      by raehl (609729) <raehl311@nOSPam.yahoo.com> on Tuesday September 29, 2009 @01:17AM (#29576987) Homepage

      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.

    • by jandersen (462034)

      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.

    • by makomk (752139)

      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.

    • by Khelder (34398)

      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 (Score:1, Funny)

    by Osinoche (769786)
    That's right. First amendment baby. woooooo hooooooooo USA USA USA
  • by BadAnalogyGuy (945258) <BadAnalogyGuy@gmail.com> on Tuesday September 29, 2009 @12:13AM (#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: (Score:2, Interesting)

      by jecowa (1152159)
      If the players sign away their rights to their names, Why don't the game companies include those names in the NCAA games?
      • Re: (Score:3, Interesting)

        by samurai54 (1645989)
        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
        • Re: (Score:2, Insightful)

          by runningman24 (1172197)
          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 o
    • by noundi (1044080)

      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?

    • by elrous0 (869638) *

      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

      • by Uberbah (647458)

        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.

    • What contract with the NCAA?  It's supposed to be an amateur league, right?
  • So... (Score:5, Interesting)

    by MorderVonAllem (931645) on Tuesday September 29, 2009 @12:18AM (#29576675)
    ...does this mean I can create my own football game using the likeness/names of the players without having to license the information? (
    • 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... (Score:5, Insightful)

        by Trepidity (597) <delirium-slashdot@@@hackish...org> on Tuesday September 29, 2009 @12:42AM (#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: (Score:2, Interesting)

          by moon3 (1530265)
          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: (Score:3, Interesting)

            by Leafheart (1120885)
            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?
          • by kthejoker (931838)

            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

            • by moon3 (1530265)
              Are you sure ? I've thought that some player just confused some random similarities with him and wants EA to pay. I've played FIFA Football some time ago so bear with me. I doubt we can recognize hairstyle or face here, but we surely can assign pretty much anybody to bunch of pixels on screen with similar dress number and skin tone.
    • by iamhigh (1252742)
      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.
  • by MobyDisk (75490) on Tuesday September 29, 2009 @12:32AM (#29576761) Homepage

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

    • 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!

  • 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
  • Awesome... (Score:5, Funny)

    by sitarlo (792966) on Tuesday September 29, 2009 @12:44AM (#29576831)
    Now I can submit my Michael Vick Dog Fighting game to the app store.
  • by Pinckney (1098477) on Tuesday September 29, 2009 @12:51AM (#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: (Score:2, Informative)

      by Anonymous Coward

      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.

    • by Hatta (162192) *

      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.

    • 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.

  • by overbaud (964858)
    ... 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: (Score:2, Funny)

      by Hanners1979 (959741)
      If the hookers all looked like a judge's wife, I'd want a refund.
    • by mcgrew (92797) *

      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.

    • by dbet (1607261)
      How is that different than a political cartoon of Obama hugging a pig or something similar? You don't have to pay Obama, nor does he have a say in whether or not the cartoon can be printed.
  • 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! :)
  • 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.

  • by Bob9113 (14996) on Tuesday September 29, 2009 @07:25AM (#29578791) Homepage

    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.

  • 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.
    • Sure
  • 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.
  • 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.

  • 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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