No, the First Amendment does not give one of the world’s largest video game publishers to make money off the likeness of professional athletes without their permission or compensating them. Or at least the U.S. Supreme Court doesn’t want to hear anyone argue that it does.
The case involves the alleged unauthorized use of former NFL players’ likenesses in the popular and long-running Electronic Arts video game series Madden NFL. Just like in a similar case involving college football players and EA’s NCAA Football series, these athletes said the publisher did not get their permission before putting their likenesses into the video games.
EA challenged the lawsuit, claiming that the players’ lawsuit was prohibited by California’s anti-SLAPP law. This refers to “strategic lawsuits against public participation” — lawsuits filed just in the hope of shutting the other party up or otherwise chilling their free expression.
But in Jan. 2015, a federal appeals court disagreed, denying EA’s First Amendment argument and allowing the players’ lawsuit to continue.
The appeals court rejected EA’s claim that the use of these former players’ likenesses was merely “incidental.” To the contrary, the court held that Madden’s use of the likenesses was “not incidental because it was central to Electronic Arts’s main commercial purpose: to create a realistic virtual simulation of football games involving current and former National Football League teams.”
So, in Oct. 2015, EA filed a petition [PDF] with the U.S. Supreme Court, taking issue with the appeals court’s ruling that the only way an expressive work could enjoy First Amendment protection from this sort of “right-of-publicity” claim is if it were more “transformative” of the likenesses being used.
“That rule is constitutionally perverse,” argued EA in its petition, “it affords First Amendment protection only to fanciful or distorted portrayals, not accurate or realistic ones. The rule also chills expression, both because it is hard to predict what a court will decide is sufficiently ‘transformative,’ and because such an inquiry inevitably requires a court to make a subjective judgment about whether a depiction is ‘artistic,’ thus warranting protection, or ‘literal,’ and thus subject to liability.”
While it may be difficult to feel any sympathy for EA, groups like the Electronic Frontier Foundation, and the Comic Book Legal Defense Fund filed briefs raising concerns about the precedent set by the appeals court ruling.
The EFF brief [PDF] gives the example of a Madonna concert in which the singer displayed a montage of dozens of fan-made drawings and paintings of the pop superstar. Under the appeals court’s rationale, argued the brief, Madonna could have sued each of those people for creating a work of art in her likeness.
“The right of publicity, and the uncertainty over its allowable scope, casts a shadow over a staggering range of expression,” continued the brief. “Originally construed as a limit on images in advertising, it has been asserted against biographies, comic books, songs, computer games, movies, and magazines, and has come to encompass virtually anything that ‘evokes’ a specific person. Moreover, in some states, claims can be made decades after the subject has died. In light of this broad reach, finding the right balance between the right of publicity and the First Amendment is critical.”
Even though SCOTUS denied the EA petition without comment, this issue of if, when, and how we each have control over the use of our likeness is something that the Supreme Court will ultimately be tasked with sorting out.
by Chris Morran via Consumerist
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