One for the Football Fans

By Kyu Hee Chu

Reviewed by Jennifer Williams

Why does EA Games produce video games recreating real professional sports players?  Could it be that that is the driving factor in making the games more fun and attractive to its customers?  Well, that’s what a former NFL player, Tony Davis, is arguing in his class action lawsuit.

It all started out like this: 

Last July, Tony Davis, an ex-NFL player for the Tampa Bay Buccaneers, sued Electronic Arts Inc. in the Central District of California. The reason is for selling games (specifically, the 2009 Madden NFL game) that included the plaintiff and about 6000 other ex-NFL players’ likeness without prior consent, and without paying them any compensation.

Davis claimed that this was against his right of publicity, and that the defendants (EA Games) had also been unjustly enriched.

What is right of publicity?  

Right of publicity is a state-protected right, so the law varies slightly from state to state.  However, right of publicity generally prevents people from using someone’s likeness for advertising purposes without prior consent from that person.[1]

In arguing that his right of publicity had been violated, Davis claimed that Madden NFL is highly sought-after, especially because of the realistic representations of the players.  For example, the Madden characters have the same teams, positions, height and weight, and years of experience as that of the real ex-NFL players that they are supposed to represent.

The thing is that the EA does pay current NFL players that are represented in their games but apparently thought it didn’t have to if they changed the uniform numbers and deleted the names off of the Madden characters that are meant to represent the ex-NFL players.  However, as Davis argues, it’s still pretty obvious by looking at the other factors such as the player’s height and weight and teams and positions that each Madden character is supposed to represent a certain player, and fans can usually tell who it is supposed to represent.[2]

So what will happen?

Well, we have yet to see how the court will come out in this case, but it is interesting to note that last year, the California court used the “transformative elements” test in Keller v. Electronic Arts, Inc. regarding the game’s representation of Sam Keller, an ex-football player at the Arizona State University.

What’s the “transformative elements” test?  It’s a balancing test really – weighing the interests in protecting right of publicity of ex-NFL players against the interests in protecting the First Amendment rights of EA Games.  The California Supreme Court said that if the work (video game in this case) has more transformative elements rather than an exact depiction of the real-life player, then the video game maker’s First Amendment rights to create such a game is protected.  In other words, the closer the Madden character is to the real-life player, the harder it will be for the game maker (in this case, EA Games) to make a case that it should win.

Anyway, in Keller, the court said that EA is not protected under the First Amendment because the representation of Keller was basically an exact copy of him, as the game character had the same number, same height and weight, and was from the same state as Keller.[3]

Will the court apply the same test that it did in Keller?  If it does, it would be interesting to see how this could shape the way EA represents ex-NFL players in its games in the future.  If EA loses, will it pay for continued use of the likenesses of the ex-NFL players, or will it just get rid of its “historic” teams?  Will the game lose its appeal to its large customer base?  What if the ex-NFL players lose?  What would it mean for the current NFL players now who retire in the future?  After being paid for their likenesses being included in the games, will they be cut off from payments once they retire?  It’s all up to the California courts to decide.

 


 

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