Angry College Athletes Sue Videogame Company For Using Their Image
Any work of art or entertainment that depicts real people is guaranteed to raise thorny legal issues, and video games are no exception. Sports-themed video games have their appeal in letting players take on the role of their favorite sports teams and use their favorite players. Kam Keller started out as a fan of the practice, thinking that it was “awesome” to be able to play himself. Electronic Arts Sports, the maker of a wide variety of sports themed video games, had produced the game NCAA Football, which included a character with Keller’s appearance, jersey number and specialty.
The problem is that, like all college athletes, Keller had signed an agreement with the NCAA which barred him from profiting off of his name and likeness. So why should Electronic Arts be able to do so? Why was the NCAA allowing them to use these images for a profit? The NCAA returns a significant profit from such video game royalties themselves, and in another move that may have helped prompt the suit, was planning on relaxing guidelines so that commercial sponsors could use in-game footage of the players in question. Keller was one of several players who joined the class action suit filed last spring against EA, the NCAA and the Collegiate Licensing Committee. EA’s position has been supported by the MPAA, Viacom, and numerous others, including several video game publishers. Keller in turn has been supported by the Screen Actor’s Guild, the AFL-C.I.O, various sports players’ unions, and the American Foundation of Television and Radio Artists.
This February, the district court judge rejected Electronic Arts dismissal, and EA appealed the dismissal in August, and parties have been gathering briefs on both sides.
Celebrities have a right to protect the use of their image, a doctrine closely related to trademark law. One famous case is White v. Samsung Electronics America, where Vanna White successfully sued Samsung when they used a robot with her appearance in an advertisement. However, works of art that incorporate a celebrity’s image can be protected under the First Amendment right to free speech. The question of whether video games can be considered artistic or creative works is currently open, legally. Perhaps unsurprisingly, the issue has arisen independently of the legal questions here; Roger Ebert created a minor stir in the gaming community with his declaration that video games can never be art. I certainly feel that certain video games can be art; the genre of “Role-Playing Games” is often attached to those games focused on telling a story. It may not be high-brow, but then neither are many books, movies or songs that are protected by free speech. Does a sports game qualify? Does it make sense to make such distinctions, when genre classifications in video games are fluid and controversial? I’ll leave those question open to the reader.