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Human likenesses are not protected speech, US court rules
Human likenesses are not protected speech, US court rules
August 1, 2013 | By Kris Ligman

August 1, 2013 | By Kris Ligman
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More: Console/PC, Business/Marketing



In what may prove to be a landmark ruling of considerable precedent, the U.S. 9th Circuit Court of Appeals ruled yesterday that unauthorized video game representations of real individuals are not protected by the First Amendment.

In particular, the appellate court rejected an appeal by Electronic Arts and the National Collegiate Athletic Association (NCAA) which contended that the uncompensated use of student athlete likenesses in EA's sports titles was protected speech.

"EA's use of the likenesses of college athletes like [original plaintiff] Samuel Keller in its video games is not, as a matter of law, protected by the First Amendment," the court stated in its majority opinion, following a 2-1 ruling.

"The Court of Appeals confirmed that EA's defense -- the First Amendment claim -- was fundamentally flawed," said Steve Berman, attorney for plaintiff Keller. "We expect that when we appear before the trial court again this fall, the defendants will have a very difficult time mounting a new defense for their blatant exploitation of student athletes."

Recently, EA filed a request for a motion of dismissal from the suit, which is expected to go ahead in early September. The NCAA also recently announced it will not renew its present contract with EA, though it is likely EA Sports' college ball titles will continue via licensing through a separate legal entity, the Collegiate Licensing Company (CLC).


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Comments


Kevin L Clark
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!!!

Stephen Cunha
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So, would that mean that if another company chose to make a sports game with the likeness's of every athlete in pro sports it would be legal? (assumed it would be unlicensed by that league, but said sports game would not need to compensate for any "likenesses")

Although I think there should be compensation for the atheletes who are portrayed (and/or their leagues) It would be great to see another franchise, like 2K, or a completely new IP create a sports game to compete with EA sports and make them put their collective feet in their mouths.

E Zachary Knight
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"So, would that mean that if another company chose to make a sports game with the likeness's of every athlete in pro sports it would be legal?"

No. It is saying that EA use of college athletes' likenesses without compensating those athletes is not protected by the First Amendment. That means if EA want to use their likenesses they have to have some kind of agreement that compensates the athletes.

Sergio Rosa
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I would assume cases like that one are more about licensing teams, brands and all that, but if someone were to make a third person action whatever using the likeness of some football player or famous (or not so famous) person, would not be illegal.

Sherman Luong
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I own the right of 5'11 200lbs Asian in FPS, Sports, Action and Casual Games. :)

E Zachary Knight
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I wonder how this ruling will effect the use of people's likeness is editorial games. You know, those games designed to make fun of a political figure or some other public figure. Would the creator of such games be open to lawsuits over the unauthorized use of their likeness? Or is the game's creator protected because of the satirical and editorial nature of the game?

Kris Ligman
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I was thinking about that. The US courts have been known to take intent into account -- ie, EA's titles are explicitly commercial, whereas a game that is using public figures for noncommercial satire or critique might indeed be covered under the first amendment.

I expect we're going to see that distinction put to the test in the next few years, one way or another.

Ed G
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I don't think political or public figures are protected from satire.....

Lex Allen
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You are not required by law to get permission to do a "parody", which is why so many people get away with making fun of people.

However, if you get in trouble and go to court, the judge will decide whether your creative work is really a parody or not. If they say it's not a parody, then you would be in trouble.

Perhaps if they are using your name AND your image, the real problem is there. I always change the names in my games just to make sure that I don't have any issues, even if they are just references. Too many frivolous lawsuits against creative work. >(

I'm just worried that people will start looking at game characters and say, "Hey! That looks like me!"

This should not be construed as legal advice since I'm not a lawyer.

Andrew Wallace
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My concern exactly. I would be more comfortable with this if this quote: "EA's use of the likenesses of college athletes... in its video games is not, as a matter of law, protected by the First Amendment" had an 'inherently' in there somewhere.

Christian Nutt
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Yeppp that was my first question and I find the whole thing rather troubling.

Ken Nakai
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Well, then I'd wonder how Political Machine would deal with this. It's not entirely satire/critique but uses cartoony depictions of politicians. Maybe the difference will end up being the difference between a public servant and a private citizen with a public profile?

Joe Ramponi
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In the ruling they say that EA depiction of the athletes is not transformative which is part of the reason it was not protected under first amendment.

Ed G
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So the NCAA owns the likeness of every student athlete?? I'm actually glad the 1st amendment argument didn't fly as that's an over-used argument, but this seems a little absurd. Seriously, "blatant exploitation of student athletes".....come on!!

BTW, when did compensation for student athletes become an acceptable practice?

Eric Salmon
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Not sure if I misunderstood what you were saying, but the NCAA is a co-defendant of EA. The student is suing both.

Ed G
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Sorry, I guess I worded that poorly. To clarify, I'm glad the 1st amendment argument failed but I think the lawsuit is absurd. EA's lawyers should have come up with something better to get this case dismissed.

Ken Nakai
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It's not supposed to be. That's the thing...this was brought up by a student athlete. Yet, student athletes aren't allowed to be compensated under most circumstances. Maybe it's because the compensation isn't tied to the team/university they play for so there isn't an implied incentive? Dunno...

Michael Mullins
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My understanding may be fuzzy, but I believe the student's likeness is not something the NCAA has ownership of in their contract as student athletes. That's something retained by the student and remains his property. He can't sell his likeness while playing as an NCAA athlete, but neither can the NCAA profit from that specific person. That's why the lawsuit exists, EA used the likeness without permission. I'm not clear on why the NCAA is a co-defendent. Either they profited improperly from use of his likeness or improperly allowed the use to happen.

So no. Based on my understanding, I do not think the lawsuit is at all absurd.

Ed G
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What makes this lawsuit absurd is:

1 - student athlete(s) suing a game company and the NCAA.
2 - the NCAA did NOT sell the likeness of this student athlete.
3 - the plaintiffs will not be able to prove that either the NCAA or EA profited from this/these specific athlete(s).

What makes this lawsuit really absurd is:

1 - NCAA rules prohibit compensation to student athletes.
2 - EA does NOT need the express written permission from every athlete under a license agreement.
3 - a person's likeness is NOT property.

What makes this lawsuit run-of-the-mill absurd is it's some, apparently very "proud" individuals trying to make some quick money (ie. just another frivolous lawsuit, ie. absurd, etc, etc, etc!!)

That said, let's just agree to disagree......


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