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>Rights of Publicity: Its in the game

>The law surrounding an athlete?ÇÖs right of publicity is fluctuating faster than Brett Favre?ÇÖs retirement plans, and game companies ought to be paying attention. This week, Sam Keller, a former college quarterback, filed a class action in the U.S. District Court for the Northern District of California against Electronic Arts and the NCAA for using college athletes?ÇÖ images and attributes in EA?ÇÖs line of NCAA video game titles.

The right of publicity is the right of a person to control commercial use of his or her name, image, likeness, or some other identifying aspect of identity. According to the lawsuit, there are close similarities between real-life college athletes and the virtual athletes in EA’s games. ?Ç£Electronic Arts matches the player?ÇÖs skin tone, hair color and often even a player?ÇÖs hair style?Ǫ?Ç¥ The complaint also alledges that EA?ÇÖs virtual athletes are depicted with unique accessories, such as wristbands, glasses, visors and headbands, identical to those worn by their real-life counterparts.

This new suit against EA comes on the heels of another important right of publicity case decided last year, that one involving a fight over the use of athletes’ statistics in fantasy sports. In that case, Major League Baseball lost its Missouri common law right of publicity claim at the 8th Circuit (and was denied an appeal by the Supreme Court) over the names, likenesses, and statistics of MLB athletes used by a fantasy baseball league operator. The 8th Circuit balanced the right of publicity in Missouri against federal First Amendment free speech protections, and decided the latter should triumph.

And just last week, the Minnesota District Court (located within the 8th Circuit) granted summary judgment in favor of CBS, saying that CBS Fantasy Sports should not have to pay licensing fees to the National Football League Players Union for NFL athletes?ÇÖ names, likenesses, and statistics. The lower Minnesota court, not surprisingly, followed the 8th Circuit?ÇÖs lead in holding that the First Amendment trumped Minnesota?ÇÖs right of publicity laws when it comes to fantasy sports.

These courts denied the NFL Players Union’s and MLB’s claims against fantasy sport operators because the courts felt that athletes’ names and statistics are in the public domain, and therefore enjoyed First Amendment protection. These two cases, along with the new suit against EA, deserve attention because the courts have not yet given straightforward guidance on where to draw the line between permitted and prohibited uses of athletes’ statistics and likenesses. This uncertainly is perhaps even more opaque when we take into account that states like California and New York typically rule more strongly in favor of plaintiffs with right of publicity claims, due to the importance of personalities on those markets.

Are the facts a basketball player stands six foot six inches tall, plays guard for the Bulls, and wears jersey number 23 in the public domain? Or, under what circumstances will the facts that the player has dark skin, is bald, wears Nikes, and sticks his tongue out when he dunks merit First Amendment protection?

Game companies need to take stock of the law surrounding the use of names, images, likenesses, and statistics, and evaluate the associated risks, before including any aspect of a real-life athlete’s or other person?ÇÖs identify into a game.

Gavin George is an associate in the Intellectual Property Practice Group of Haynes and Boone. His practice covers all areas of intellectual property law, with an emphasis on technology transactions and data privacy in the information age. His practice includes technology agreement drafting and negotiation, intellectual property analysis and due diligence, and consulting on evolving data protection and social media issues.

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May 2009