Judge Rules Games Are "Expressive Works"

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.

So...

[MorderVonAllem]

...does this mean I can create my own football game using the likeness/names of the players without having to license the information? (

Re:As a player, you don't own your own image

[jecowa]

If the players sign away their rights to their names, Why don't the game companies include those names in the NCAA games?

Re:So...

[moon3]

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.

What huh?

[raehl]

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.

Re:No shit sherlock

[unlametheweak]

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.

Re:No shit sherlock

[fireball84513]

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 it.

Re:As a player, you don't own your own image

[samurai54]

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 from making even more money directly off the athletes.

Re:Awesome...

[BikeHelmet]

So I guess this means Charles Barkley RPG is totally 100% legal? Actually, it probably was before this ruling, because of its price. (Free)

http://www.joystiq.com/2008/01/22/fan-made-charles-barkley-rpg-sees-full-release/ [joystiq.com]

I wouldn't mind seeing that on the app store. :P

Re:No shit sherlock

[skegg]

I'm not sure whether or not that is true. The below came to mind:

If Schwarzenegger had decided not to lend his appearance to the film, then John would have shot the T-800's face off before the audience got a good look at him.

Taken from Wikipedia [wikipedia.org]

Re:So...

[AK Marc]

A person is not a copyrighted creative work. A game based on a person (generally a sports game) is more centered on uncopyrightable facts, like game stats, than anything else. There is just enough of a likeness so that if you know who it's supposed to be, you think it looks like them. However, your statement of taking a copyrighted item, making a derivative work and then saying that's the same thing is directly contradictory to law.

Re:So...

[Leafheart]

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?

Re:No shit sherlock

[smurphmeister]

Your analogy is close, but just a little off. If the movie marketed itself as having Natalie Portman starring, without her permission, then they are in trouble. If they used a digital likeness, but at no point said that it was Natalie Portman, then you've got the same situation as the games.

In these games, they have nameless players, that just happen to look a lot like, play a lot like, and wear the same number as a real former/current player for that same team. This allows the hypocritical NCAA to license the game without breaking their own rules that players can't be used to endorse products.

Re:No shit sherlock

[AmberBlackCat]

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.