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The Courts Games

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.
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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 @01:08AM (#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 MobyDisk ( 75490 ) on Tuesday September 29, 2009 @01:32AM (#29576761) Homepage

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

  • by wesslen ( 1644543 ) on Tuesday September 29, 2009 @01:39AM (#29576803)
    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
  • Re:So... (Score:5, Insightful)

    by Trepidity ( 597 ) <delirium-slashdot@@@hackish...org> on Tuesday September 29, 2009 @01:42AM (#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.

  • by Pinckney ( 1098477 ) on Tuesday September 29, 2009 @01:51AM (#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.

  • by overbaud ( 964858 ) on Tuesday September 29, 2009 @01:51AM (#29576873)
    ... 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?
  • by Kinky Bass Junk ( 880011 ) on Tuesday September 29, 2009 @01:59AM (#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.
  • by Anonymous Coward on Tuesday September 29, 2009 @02:06AM (#29576919)

    That would require paying the NCAA?

  • by Anonymous Coward on Tuesday September 29, 2009 @02:09AM (#29576937)

    either that or the NCAA actually has the decency not to pimp out amateurs playing for free tuition.

  • by stephanruby ( 542433 ) on Tuesday September 29, 2009 @02:25AM (#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.
  • by crispytwo ( 1144275 ) on Tuesday September 29, 2009 @02:42AM (#29577141)

    not if they are not actually present in the movie/game...

    you don't get licenses for things that are merely representations of likeness.

  • by runningman24 ( 1172197 ) on Tuesday September 29, 2009 @04:03AM (#29577489)
    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 of the money. If it can be claimed they're only selling a team jersey, the colleges and NCAA keep it all. Never mind that the only jerseys that sell are the ones with the past or current stars numbers on them. To the subject at hand, people don't buy sports games to play as a uniform, they also want to play as their favorite players with realistic stats, abilities and looks. Even with the looks, jersey, and stats being accurate, it's usually not enough. The first thing many people do is download a patch with the real names.
  • by Kashgarinn ( 1036758 ) on Tuesday September 29, 2009 @05:30AM (#29577839)

    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 to do screw the people left of the beatles over, but this? No, not really, here this is really just an artistic license to create similar characters, they're not exploiting anyones particular identity for capital gain.

  • by Bob9113 ( 14996 ) on Tuesday September 29, 2009 @08:25AM (#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.

  • by i_ate_god ( 899684 ) on Tuesday September 29, 2009 @09:35AM (#29579519)

    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're oh so wrong?

    Video games are similar. But with video games, there are several different aspects to the art, level design, story writing, music, even gameplay, that are usually spearheaded by a select few, and developed by many. The junior developers could be regarded as tools, much a kin to a paintbrush, that are used to create a tangible representation of the imagination of the story director.

    Your idea that art has to make the consumer feel "breathless" is certainly a bizarre and strange opinion.

  • by Secret Agent X23 ( 760764 ) on Tuesday September 29, 2009 @10:09AM (#29579951)

    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.

    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?

  • by Chris Burke ( 6130 ) on Tuesday September 29, 2009 @12:19PM (#29581727) Homepage

    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?

One man's constant is another man's variable. -- A.J. Perlis

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