What kind of control should celebrities have over creative works that involve their images? In a high-stakes case just argued in a California appeals court, media companies are asking for courts to place clearer limits on celebrities’ intellectual property rights in their own images, known as “rights of publicity.” The case is about whether Electronic Arts (NSDQ: ERTS) has to pay college athletes when it uses their image in video games, but it could have wide-ranging ramifications in other digital arts as well. That’s why the major movie studios and several newspaper companies are backing EA in this battle.
EA and its supporters argue that if rights of publicity aren’t properly balanced against the First Amendment, it would make it impossible to create artworks about famous persons like The King’s Speech or The Social Network.
The case is a class-action suit in which college athletes are suing Electronic Arts for using their images in the company’s NCAA Football, NCAA Basketball and NCAA March Madness video-game series without paying the athletes. The athletes’ lawyers say it’s an unfair double standard, since EA pays professional players when it uses their images in similar games, but only pays the NCAA when it uses player images from college sports. EA lawyers asked a California district court to dismiss the case, but the judge allowed it to move forward; now EA has appealed that ruling to the U.S. Court of Appeals for the 9th Circuit.
The athletes’ lawyers argued that EA used the players’ likenesses in a way that isn’t “transformative” at all, so the video game company needs to pay up. But EA and its media company allies argue that the test used should be more like trademark law and less like copyright law. That would allow a more liberal test that lets makers of creative works-whether fictional or documentary-style-to have wider leeway in how they used the images of famous people, even without permission.
EA argues that the right of publicity should be used to protect things like a T-shirt with a star’s picture on it, or another object that contains a “mere likeness” of a person, without additional creative elements.
At oral arguments held yesterday in a Pasadena courtroom, EA’s lawyer emphasized that the video games are complicated creative works, and case law evolved from cases that involve things like T-shirts shouldn’t be applied. “They’ve added all kinds of things… audio commentary, graphics created by EA’s artists of fans and mascots, as well as players and coaches,” said a lawyer representing EA.
Plaintiffs’ lawyer Steve Berman emphasized that EA was using an exact likeness of his clients, down to the smallest physical details, and that control of that image is a “property right” the players must be compensated for. “You can’t take someone’s rights for nothing,” said Berman. “They didn’t surrender their right to protect their identities.”
When prompted by one of the judges on the three-judge panel, Berman differentiated the case from earlier suits that have found that fantasy football leagues have the rights to use player information even without permission from the leagues. Those cases simply involved fans or companies creating fantasy leagues out of publicly reported facts, said Berman. Because Electronic Arts is using the players’ actual likenesses, it needs to strike a licensing deal with his clients.