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Comments: 157 +-   Judge Rules Games Are "Expressive Works" on Tuesday September 29, @12:05AM

Posted by Soulskill on Tuesday September 29, @12:05AM
from the decision-pending-on-wetness-of-water dept.
court
games
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" 50 Comments More /

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  • No shit sherlock (Score:4, Insightful)

    by aussie_a (778472) on Tuesday September 29, @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?

    • Re:No shit sherlock (Score:5, Insightful)

      by Kinky Bass Junk (880011) on Tuesday September 29, @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, @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.

          • Re: (Score:3, Insightful)

            by i_ate_god (899684)

            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

          • 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?

          • Re:No, that's "good" art vs "banal" art. (Score:4, Insightful)

            by Chris Burke (6130) on Tuesday September 29, @11:19AM (#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?

      • Re:No shit sherlock (Score:5, Insightful)

        by stephanruby (542433) on Tuesday September 29, @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.

      • Do you think the same about music?

      • 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)

        by fireball84513 (1632561)
        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.

      • 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

      • 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.

        • Re: (Score:2, Insightful)

          by crispytwo (1144275)

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

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

          • Re: (Score:2, Interesting)

            by skegg (666571)
            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]

            • Choosing to not use someone's image out of respect is quite distinct from not being allowed to use someone's image.

                • Re: (Score:3, Interesting)

                  by smurphmeister (1132881)
                  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 li

    • What huh? (Score:4, Interesting)

      by raehl (609729) <raehl311@nOsPAM.yahoo.com> on Tuesday September 29, @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.

    • 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.

      • You can as long as the work has moved into the public domain. The laws that prohibit you from doing so for copyrighted works... are copyright laws.

        Are you going to say someone's face, height and weight can be copyrighted? Is that truly what we've sunk to?

  • 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
        • 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

    • 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?

  • So... (Score:5, Interesting)

    by MorderVonAllem (931645) on Tuesday September 29, @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, @12:42AM (#29576821) Homepage

        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?

  • Facts and figures are not copyrightable (Score:4, Insightful)

    by MobyDisk (75490) on Tuesday September 29, @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!

      • Sorry, my copy of the Constitution seems to be out of date, could you cite the full text of the Right of Publicity amendment?

  • 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, @12:44AM (#29576831)
    Now I can submit my Michael Vick Dog Fighting game to the app store.

  • Open to competition (Score:3, Insightful)

    by Pinckney (1098477) on Tuesday September 29, @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.

  • ... 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?
  • 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.

  • Copyright Will Eat Itself (Score:5, Insightful)

    by Bob9113 (14996) on Tuesday September 29, @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.

    • Probably the method you outlined (" make an almost exact replica of a popular video game") has a host of possible problems going beyond the first amendment ... one (of many) might revolve around defeating encryption, for example. Not to mention that it sounds like a tremendous amount of work.

      But, taking some liberty and assuming there were none, and assuming you did manage to create a true parody, you can always make a parody of anything and benefit from some protection from copyright and trademark infringe

    • Re: (Score:3, Interesting)

      by AK Marc (707885)
      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.
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