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Lessons Businesses & Public Figures Can Learn from NCAA Football Players

Businesses who use celebrities to endorse their products should pay attention to two recent decisions, as should celebrities and other public figures.

In two recent cases, former college football players filed suit against Electronic Arts, Inc., better known as EA, the maker of video game "NCAA Football."  The two primary plaintiffs were Ryan Hart, who played quarterback for Rutgers in the early 2000s, and Samuel Keller, who was QB at Arizona State in the mid 2000s.

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Although EA never used the players' names, it honed in on real-life details of each player, including jersey number, jersey color, type of helmet and facemask, player height and weight, physical appearance, and throwing and interception stats.  The players sued on behalf of themselves and other players.  The heart of each suit was that EA had violated their right of publicity.

The right of publicity is a creature of state law and, although they have a lot in common, all 50 states treat the right of publicity differently.  Typically a plaintiff must show the a defendant used an individual's name, photograph or likeness to advertise goods or services without the plaintiff's prior consent.  The right typically covers any form of an individual's likeness or persona.  For example, Bette Midler sued when Ford used someone who sounded like her to promote a car in a song, and Vanna White sued Samsung for using a robot dressed in a wig, gown and jewelry to turn letters on a game resembling Wheel of Fortune.  The right also typically covers any medium, from photographs to films to video games.

In these two most recent cases, EA argued that it had a First Amendment right to use these college players' likenesses in its video games.  The Third Circuit and Ninth Circuit Courts of Appeals acknowledged that a First Amendment right of expression extends to video games but held that the players' right of publicity trumped EA's First Amendment right.  The courts both employed the "Transformative Use" balancing test and concluded that EA's video game failed to transform the players' likenesses.  The dissenting judges in both cases disagreed, finding that the video games were highly transformative, given that gamers have the ability to change the avatars' appearances and to never encounter Hart or Keller if they so choose.

Businesses who utilize the images and personas of public figures and celebrities should always obtain consent prior to using the image.  Celebrities often give consent to have their songs recorded and published (a right governed by copyright), but that consent often does not encompass the right of publicity.  Celebrities should always check to see to what extent they have consented to having their right of publicity used.  The right of publicity continues to be one of the most rapidly changing and evolving areas of intellectual property law.

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