What Is an Athlete's Publicity Right in a Video Game?

As technology has evolved, video game auteurs have opted for a hyper-realistic rendering of the subjects/participants of their games, including games modeled on real-world sports. Commercial viability for a video game no longer equates with the representation of a quarterback as a red LED dash, as it did in the days of Mattel/Coleco's Electronic Quarterback. Today's game designers and consumers demand a sports game experience that is as close to the real world, and real players, as possible. Consumers will pay more for a game that meets this objective and less for one that does not.

Game manufacturers have largely succeeded in delivering on this demand. For instance, a large number of professional league-licensed video games contain playable teams and characters whose names, images, statistics and even play abilities correspond with a great degree of accuracy to their real-world counterparts in the National Football League, National Basketball Association and Major League Baseball. It would seem that everyone is a winner in this scenario: The gamers need never leave the basement for want of new sports titles; the leagues and players' unions, which license the use of team and player names and likenesses on a collective basis, have a new and significant revenue stream for their respective constituencies; and the game companies have lucrative titles to offer year in and year out.

Players Fight Back

But at least a handful of players are not happy with this situation. One such player is Sam Keller. Keller is a former and successful National Collegiate Athletic Association (NCAA) quarterback. At the conclusion in 2008 of his athletic and academic career at Arizona State University and the University of Nebraska, Keller was not selected in the professional football draft and chose not to pursue a career as a professional football player. But he still has some unfinished business with respect to his career in college football ' business that raises issues at the heretofore little-explored junction of collegiate sports, video games and intellectual property.

In May, Keller filed a detailed complaint in the U.S. District Court for the Northern District of California seeking class action certification against the NCAA, its licensing arm Collegiate Licensing Co. (CLC) and Electronic Arts Inc. (EA). The action, alleging a variety of state tort claims under federal diversity jurisdiction, is based principally upon the contention that EA's sale of a series of successful NCAA/CLC-licensed college football-themed video games containing allegedly highly realistic portrayals of actual college athletes, without compensation to or permission of the players, violates the rights of those college athletes under state law granting individuals control over their rights of publicity.

The facts Keller allege revolve around how EA portrays players on various NCAA teams in its annual NCAA football game for various home gaming platforms. Unlike the various licensed professional league sports games, the EA game as sold does not designate individual players by name. It does not do so pursuant to the NCAA's policies relating to amateurism (arguably diminished in recent years) and, specifically, to an NCAA bylaw prohibiting the commercial licensing of any student athlete's “name, image, or likeness.”

But Keller alleges that EA does everything except use actual player names in the depiction of its video game athletes, and, he alleges, EA, CLC and the NCAA do nothing to discourage player configuration and use of the EA game so as to represent actual individual players by their true name, image and likeness. Keller's complaint provides detailed examples arguing that EA actively tries to portray every member of every included virtual NCAA team in a way that mirrors the real-life appearance, vital statistics and playing tendencies of the respective corresponding real-life NCAA player on the team in question. The complaint provides several examples, starting with the quarterback, wearing jersey No. 5, on the virtual “University of Nebraska” team corresponding to the year in which Keller started the season as a quarterback, wearing jersey No. 5 for Nebraska.

But that is not all that bothers Keller. He alleges that, notwithstanding EA's nominal omission of the actual player names for these alleged virtual doppelgangers, EA subverts even this nod to the NCAA non-commercialization policy by enabling gamers easily to custom-configure their rosters so that the real names of the real-life counterpart players can readily be populated and saved into the gamers' customized roster, either by downloading from one of numerous custom roster lists on Web sites or by exchange of rosters with other gamers in the EA-sponsored multiplayer chat room “EA Locker.”

Keller's claims include statutory claims under, respectively, the right-of-publicity laws of Indiana (where the NCAA is headquartered) and California (where EA is based), a common law right of publicity under the law of California, civil conspiracy allegations against all defendants, unfair competition claims against EA, unjust enrichment claims against EA and CLC, and a breach of contract claim against the NCAA. [Editor's Note: The majority view holds that the state right-of-publicity law that applies is the one in which the aggrieved individual permanently resides. Indiana subscribes to the minority view that if the fact pattern and the parties are related to the state, Indiana's right-of-publicity law can apply.]

Most of the claims generally relate to the same theory: EA had no right to use allegedly highly realistic portrayals of virtual counterparts having actual NCAA players' same jersey numbers and physical and athletic attributes; it had no right to encourage the ready linking in the aftermarket of their actual names with these virtual counterparts; and the NCAA and CLC have allegedly been complicit in allowing and encouraging EA's supposed clear circumvention of the NCAA policies on amateurism, to the detriment of players' interests and to the vast enrichment of all the defendants. The complaint seeks certification for a class comprising all NCAA football and basketball players whose jersey numbers have been included in an EA game (with certain enumerated exceptions).

Right of Publicity Changes Per State

The stakes are high in the relevant market. Video games, including realistic sports titles, remain a highly popular, highly competitive and highly lucrative market. Will Keller succeed in obtaining class action certification, and on his underlying claim? This will depend on how the court applies the respective right-of-publicity laws of California and Indiana (and also on what implications a claim for compensation would have in view of the long-standing NCAA policy prohibiting direct payments to student athletes while they are in college).

Right-of-publicity laws have developed on a state-by-state basis during the past several decades. More than half the states recognize a more or less robust right of individuals (and in some cases, their estates) to control the way in which their names, images or likenesses are used commercially. The right to publicity is sometimes discussed as a mirror image of a right to privacy, or as reflective of a larger principle that individuals ' and perhaps especially individuals who have gained renown, visibility or even infamy ' ought to be able to control, to some extent, when, where and how they and their image or fame are discussed, portrayed or used in a commercial context.

Generally speaking, use of a real-world individual's name, likeness or characteristics is most likely to be permitted under right-of-publicity laws when it is made for purposes of news, public commentary or debate, or otherwise conveying, in a not purely for-profit fashion, information or opinion of general public interest. Uses that are less likely to pass muster, absent the permission and/or compensation of the individual or his or her estate, are ones in which it is clear that another individual or company is trading on the other individual's celebrity or reputation for purely profit-driven reasons, to sell a product or service with which the individual has no other association.

Although none of the defendants had yet filed an answer to Keller's complaint, each has filed a motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure contending that the factual allegations in Keller's complaint are insufficient as a matter of law to support his claims. The NCAA, and CLC to some extent, argue in their motions that Keller has not shown that his “likeness” has been appropriated by anyone. The NCAA contends that a player's jersey number, virtually identical height, weight, build and home state are merely historical, statistical facts that are freely available to the public. Moreover, the NCAA emphasizes that it does not license the use of student athletes' names or likenesses, student athletes' names do not appear in any of the games as published by EA, and the only likenesses used in the games are team logos, uniforms, mascots and school stadiums, which belong to the schools, not to Keller or any other student athlete.

EA grounds its arguments for dismissal primarily in the First Amendment and the California Constitution. EA argues that, even if it uses Keller's protectable attributes, his claims must be dismissed because they violate EA's First Amendment right to create and publish its video games, as well as the greater speech protections provided by the California Constitution. EA argues that its video games are transformative, i.e., they involve far more than a “mere celebrity likeness,” and thus are protected by the First Amendment. Further, EA cites to numerous cases in which courts have held that the public's particular interest in information about sports and athletes far outweighs the athletes' rights of publicity.

The particular language of, and case law applying to, the respective statutes will also play a role in the analysis of whether the defendants can avoid liability. For instance, the Indiana statute contains a carve-out exempting from liability “[p]romotional material or an advertisement for ' an entertainment medium that ' does not convey or reasonably suggest that a personality endorses the ' entertainment medium.” Could the defendants attempt to prove that college football itself is an entertainment medium, and licensed video games thus qualify as an exempted promotional material that generates further interest in, and audience for, that medium? The notion does not seem ridiculous on its face.

At the same time, some of the case law applying right-to-publicity concepts in the U.S. Court of Appeals for the Ninth Circuit does not support sweeping exemptions or legalistically based workarounds to individual rights to publicity. There is substantial Ninth Circuit law finding a violation when all that was used was a “look-alike” (or in the first major cases, decided under California common law, involving singers Bette Midler and Tom Waits, a “sound-alike”) mimic/actor to impersonate the look, appearance or characteristic artistic impression of the celebrity in question. Clearly, a “likeness” can exist under Ninth Circuit jurisprudence even when there is some abstraction from or nonidentity with the real individual. Nonetheless, defendants may focus on the differences between their computerized characters and respective real-life players, not least the computerized players' lack of a manufacturer-designated name.

To complicate the factual and legal issues even further, in August the court related Keller's lawsuit to a similar subsequent lawsuit commenced by a former NCAA basketball player, Ed O'Bannon. These two plaintiffs since filed a motion to consolidate their actions. O'Bannon was a star power forward for the University of California at Los Angeles, where he and his team won the NCAA championship in 1995. Unlike Keller, O'Bannon pursued a career as a professional athlete, but it was not an illustrious one.

O'Bannon had filed suit in the Northern District of California, too, seeking class certification against the NCAA/CLC (but not EA). The proposed class in O'Bannon's suit includes all current and former student athletes competing on Division I men's basketball or football teams whose images have been licensed or sold by the NCAA/CLC. O'Bannon's action presents a different and somewhat more novel theory of liability from Keller's, namely alleging under the antitrust laws that “the NCAA has unreasonably and illegally restrained trade in order to commercially exploit former student athletes previously subject to its control, with such exploitation affecting those individuals well into their post-collegiate competition lives” in violation of '1 of the federal Sherman Act.

Conclusion

Even if the court did not consolidate the actions of Keller and O'Bannon, it seems possible that each plaintiff could amend his complaint to include the parties and claims included by the other. Keller has initiated what may turn into a factually and legally complex issue of first impression under the intellectual property laws and seems determined to push outward the boundaries not only of the NCAA's amateurism rules but of statutory and common law right-to-publicity concepts. O'Bannon's entry into this legal picture has further expanded these boundaries to also include antitrust principles. It remains unclear who, beyond the fortunate law firm associate to whom fell the task of extensive billable PlayStation 3 engagement in researching the complaint, will be the beneficiary of the substantial revenue generated by the ongoing popularity of college-sports-themed video games. The courts of California, which have been a crucible for the testing of more than a few novel sports-related legal claims, may have the chance to play this role again.