October 26, 2009
From The Field Of
Is a video game entitled to First Amendment protection?
It is widely known that licensing deals are a significant source of revenue for colleges
and universities. According to a recent article in The New York Times, the profit derived
from video game licensing deals represents one of the largest areas of licensing revenue,
second only to apparel.
A recent federal lawsuit, Keller v. Electronic Arts, may place these lucrative agreements
at risk.
A new twist to an old debate
This class-action lawsuit is an offshoot of the debate over whether the NCAA should pay
its athletes. The plaintiffs are led by Sam Keller, a former starting quarterback for
Arizona State University and the University of Nebraska. The complaint alleges that the
“NCAA Football” video game created by Electronic Arts violates the rights of an entire
class of NCAA athletes.
While there are a number of issues in dispute, the claim with the greatest potential to
affect these licensing deals is the allegation by the class that EA and the NCAA have
conspired to deprive these athletes of their right of publicity.
Generally, video game licensing agreements are straightforward. For example, video
game producers often pay the NFL Players Association. The NFLPA then redistributes
these earnings to the players. The NCAA and colleges and universities receive revenue
from video game producers through the Collegiate Licensing Co., but do not redistribute
the revenue to the athletes.
This lawsuit attempts to obtain the same deal for these collegiate athletes as their
professional counterparts.
Is the video game close enough?
The “NCAA Football” video game in dispute allows users to play as their favorite college
teams. Users can select a school and play in a single-game mode or participate in multiple
seasons, which even incorporate a simulated ranking system and postseason bowl games.
Different from EA’s titles for professional sports, the NCAA does not allow EA to use
the players’ names. However, EA does integrate other player traits. Notably, the virtual
version of an NCAA football player includes the player’s real position, number, height,
weight, home state, whether the player prefers to wear a visor or an armband, and even
the player’s physical strengths or weaknesses. For instance, if the player is a speedy
running back, the video game version of the player will be just as fast; whereas, if the real
life player is a power running back, the video game will reduce the virtual player’s speed
but allow the player to easily overcome attempted tackles.
It is these highly realistic characteristics with which Keller takes issue.
The right of publicity and the First Amendment
A legal analysis of this case essentially boils down to two issues:
1. Does this conduct misappropriate the players’ right of publicity; and
2. Is “ NCAA Football” entitled to First Amendment protection?
Athletes can usually assign a right of publicity. However, these
athletes can also prevent others from using their likenesses. A
very popular example of this application of the right of
publicity is a case concerning Vanna White. There, Samsung
used White’s likeness in its advertisements, albeit in the form
of a robot. The court ruled that White could prohibit this use of
her likeness. Similarly, given the realistic depictions of the
players, and as a result of recent court cases involving
professional athletes and fantasy sports, “ NCAA Football”
likely misappropriates the college players’ right of publicity.
The more difficult question is whether EA’s video game is
eligible for protection under the First Amendment. The court
will have to balance the athletes’ collective rights of publicity
against any First Amendment considerations. The First
Amendment is not reserved solely for speech. It includes a
wide array of expressions, including video games.
“NCAA Football”
doesn’t use players’
names but does
integrate other traits.
Unfortunately, the legal standard for First Amendment
protection for video games is painfully vague and occasionally inconsistent. Under
existing legal standards, this court will likely consider whether the game has significant
“ independent” or “ creative” elements aside from the depictions of the characters in the
game. Additionally, the court may consider whether this is a topic of public concern,
providing EA’s video game with further First Amendment protection. Recent court
decisions on similar issues have held that professional athletics is a matter of public
concern because of the significant public interest generated by these sports.
While the various First Amendment defenses set forth by EA present appreciable hurdles,
if the players can show that the highly realistic player images in the video game are
essential elements of the game, they will have a very strong chance at success. EA, of
course, has already set forth a number of reasons why the players’ likenesses are merely a
minor aspect of an otherwise complex video game.
Thus, it is too early in this proceeding to determine how the court will resolve this case.
What is clear is that the athletes have set forth very strong arguments and, while not
guaranteed a win, their claims have a better chance at success than most. It will be
interesting to see how this case affects EA’ s licensing deals for its professional sports
titles such as the Madden franchise of video games. Already anticipating the potentially
negative implications of an EA victory in this case, retired NFL football players,
including Jim Brown, have already filed a third-party motion in support of Keller and
against EA.
Avoiding the misappropriation of another’ s right of publicity is fairly straightforward.
However, given the difficult interpretations of these laws, and the uncertainty associated
with any legal proceeding, this lawsuit should serve as a reminder that it is best to play it
safe when engaging in any activity that could infringe upon an athlete’ s right of publicity.
Lisa Martens (martens@fr.com) is a principal and Alex Garcia (agarcia@fr.com) is an
associate in the San Diego office of Fish & Richardson.