Jim Brown Sues Sony and EA

[RainMaker]

Maybe some of you have seen this:

ESPN - Brown suing EA, Sony over use of his likeness in video game - NFL (http://sports.espn.go.com/nfl/news/story?id=3513732)

Most people have blown this off as a dumb lawsuit. But if you really think about it, it could have huge ramifications for the sports gaming community. There are a lot of games from soccer to all college sports that utilize this for players they don't or can't get a license for. It would open the door for lawsuits everywhere.

And I'm kind of surprised this hasn't happened before. In an odd way, Brown kind of has a case in my mind. They aren't using his name or face, but they are clearly trying to make that player Jim Brown. If he can show that all the teams utilize the numbering for players like this (Niners using #16 for QB, Bears #34 at RB), how is it not using a player's likeness in the game?

I still think Brown is a douchebag for doing this.

[Noop]

Hope he gets his money.

[Atocep]

And I'm kind of surprised this hasn't happened before. In an odd way, Brown kind of has a case in my mind. They aren't using his name or face, but they are clearly trying to make that player Jim Brown. If he can show that all the teams utilize the numbering for players like this (Niners using #16 for QB, Bears #34 at RB), how is it not using a player's likeness in the game?


Regardless of whether or not they're intending to make a player that is supposed to be Jim Brown, they're not using his name nor his likeness. Jim Brown is essentially arguing here that he owns the rights to Cleveland Browns #32 and the ratings assigned to the player.

[Atocep]

Hope he gets his money.

Yes, because if he gets his money then EA won't be able to use the numbers of current college players and assign them ratings. That would be fantastic.

[Chubby]

Regardless of whether or not they're intending to make a player that is supposed to be Jim Brown, they're not using his name nor his likeness. Jim Brown is essentially arguing here that he owns the rights to Cleveland Browns #32 and the ratings assigned to the player.

Who else is it supposed to be? It's random? Come on now...

[Atocep]

Who else is it supposed to be? It's random? Come on now...

And in fantasy sports games you can use a player's name and his stats and it doesn't require a license. Yet, somehow using a number and assigning it ratings should?

[Logan]

Athletes already lost that fight, so operating under the same assumptions they would lose this one too.

[JPhillips]

As long as the amount given is proportional, I don't have a problem with Brown winning. I'd want a piece of the action if I was being used to generate profit for a large corporation.

[gstelmack]

As long as the amount given is proportional, I don't have a problem with Brown winning. I'd want a piece of the action if I was being used to generate profit for a large corporation.

So much for real rosters for FOF, FM, etc. Keep in mind that games like Madden already have agreements with the NFLPA.

And I believe the courts have already decided this is public info. These guys got their money already.

[JPhillips]

I guess I see it like residuals for actors. When the company is making money off of my work I want to get fairly compensated. In this case I would expect the payment to be pretty low as Jim Brown is a pretty small piece of Madden, and maybe the best way to handle it is a payout through the NFLPA.

[Deattribution]

I guess I see it like residuals for actors. When the company is making money off of my work I want to get fairly compensated. In this case I would expect the payment to be pretty low as Jim Brown is a pretty small piece of Madden, and maybe the best way to handle it is a payout through the NFLPA.

The problem is there isn't a # that is fair compensation. They could be forced to settle for $1,000 and EA would just drop those fictional all-league teams altogether instead of paying every player on those teams $1000 bucks for something that doesn't even merit 10 extra sales (roughly $600 total). It'd be dumb business.

If they were an integral part of the game ala All-Pro Football, he'd have an argument but there isn't anything that uses the likeness of him unless he owns the Cleveland Brown's #32.

And the fact that Sony was named in this suit shows how clueless he is - Sony has no more to do with it than Microsoft and Nintendo.

[JPhillips]

I don't care what it means for Madden or other games. Just because it may impact their business model doesn't mean that Brown doesn't have an argument.

Personally, I'd imagine a small per sale fee(likely .01 or less) would be fair compensation. The amount isn't the important part for me, the issue is that EA is clearly saying #32 is Jim Brown regardless of what they call him. All of the current players are compensated through the NFLPA, but the old-timers don't get anything as far as I know. Given that the historical teams are by default a part of the game only because of the representations of the historic players, those players should be fairly compensated for their contribution to EA's sales.

[RainMaker]

And in fantasy sports games you can use a player's name and his stats and it doesn't require a license. Yet, somehow using a number and assigning it ratings should?
They have to be different. I doubt EA is ponying up millions for rights to the players if they don't have to. I thought the fantasy issue was more about the stats which was deemed to be public info.

[RainMaker]

Regardless of whether or not they're intending to make a player that is supposed to be Jim Brown, they're not using his name nor his likeness. Jim Brown is essentially arguing here that he owns the rights to Cleveland Browns #32 and the ratings assigned to the player.
He is stating that the game is making #32 him. And it's tough to deny that. All the numbers in the game that match superstars and their perceived ratings are not some collasal coincidence.

I hate what this could do to games, but I can kind of see his point. These companies are making money off his name in one way or another.

[Calis]

Is it really making EA any money?

I didn't even know they still used these All-Team teams. I doubt it'd be a big factor in their sales if they slashed it.

I get the feeling there aren't thousands of people out there buying up Madden because Browns RB #32 is on it. Let people create legends using the editor.

I don't blame him for what he did though, I'm really shocked it wasn't done sooner, and somehow I'm not surprised it is him doing it.

[ISiddiqui]

And I believe the courts have already decided this is public info. These guys got their money already.

Exactly. All they are doing is using his stats, which are in the public sphere.

[SirFozzie]

yup. This lawsuit doesn't have a chance in hell.

[M GO BLUE!!!]

If this succeeds, Techmo Super Bowl is so dead...

[MIJB#19]

Exactly. All they are doing is using his stats, which are in the public sphere.It's not that clear cut. It really depends on what privacy laws say about when a collection of data is considered to be enough to narrow it down to one particular person.

Given the information available, it's pretty clear the game is depicting a (former) football player, who used to wear the #32 Cleveland Browns uniform. According to the Cleveland Browns' website, that narrows it down to four people: Lin Houston (1946-51), Harry Jagade (1952-53), Fred Morrison (1954-56) and Jim Brown (1957-65). Factor in skin color and it seems to eliminate Houston, Jagade and Morrison, as Jim Brown is the only dark-skinned player to ever wear the Browns #32 jersey.

So yes, based on that it's clearly Jim Brown and thus I think he is entitled to receive as much money as every other player pictured in the game does.

[Suburban Rhythm]

I haven't played any EA game in probably 8 years.

Why not just switch this player to #33? And before you say that would make the roster inaccurate, when is the last time EA was concerned with producing something true to life?

[Shepp]

This right here is the reason Jim Brown will likely not win his law suit.

hxxp://sports.espn.go.com/mlb/news/story?id=3066565

Granted this is for fantasy baseball, but it wouldn't be hard to say using stats and names in computer games is about the same thing.

[BrianD]

Considering the history of sports video games, the only way I see this lawsuit working is if the in-game player is visually recognizable as Jim Brown. As far as I know, Jim Brown has the rights to his name and his likeness. He doesn't have the rights to his team/number combination or his body of statistics.

[Sun Tzu]

This is rediculous. I know this isn't the point, but whether or not old man Brown is in Madden or not, they aren't going to sell one more or one less copy if they took him out. This is just Brown (once again) trying to get his name in the news.

[Big Fo]

The funny part (other than Sony being named in the lawsuit) is that Jim Brown is just now playing Madden 2001.

[RendeR]

Hrm, the nfl teams own the numbers, so he's got nothing there. The NFLPA already got paid for using the likeness of NFL players via the licensing contract, so he's got nothing to stand on there either.

They aren't using his actual name in the game, again, he's got nothing.

So unless they're putting his actual photograph or likeness of his face on the representative player I really don't see where he has a snowball's chance in hell of getting anything out of this.

[BrianD]

Is Jim Brown part of the NFLPA? Was he in All Pro Football 2k8 (or whatever it was called)? I thought the whole reason that game was possible was because the legends aren't part of the NFLPA.

[CU Tiger]

Personally, I'd imagine a small per sale fee(likely .01 or less) would be fair compensation.


I agree whole heartedly with the legal aspect of your argument, but its worth pointing out that 32 teams *60 players each would cost EA $20/copy at .01 each....


Hrm, the nfl teams own the numbers, so he's got nothing there. The NFLPA already got paid for using the likeness of NFL players via the licensing contract, so he's got nothing to stand on there either.

They aren't using his actual name in the game, again, he's got nothing.

So unless they're putting his actual photograph or likeness of his face on the representative player I really don't see where he has a snowball's chance in hell of getting anything out of this.

Sure Cleveland owns #32 and thee Browns Jersey. but who else is a black man, who wore #32 for the Browns was 6'2" tall and weighed 225lbs...its pretty obvious who they are talking about.

One other note, Jim Brown and his entire generation get no help from the NFLPA as they were never members. Make no mistake, this is where Jim Brown is going. He wants retirement income and benefits for his generation, as usual hee is going aboutt itt in the most abrasive and self serving manner possible.

[BrianD]

Sure Cleveland owns #32 and thee Browns Jersey. but who else is a black man, who wore #32 for the Browns was 6'2" tall and weighed 225lbs...its pretty obvious who they are talking about.

It doesn't really matter how obvious it is who they are talking about. Brown has rights to his name and his visual likeness. EA could include a whole player card including all of his physical stats and his football stats and name the player Bim Jrown and be OK.

[ISiddiqui]

It's not that clear cut. It really depends on what privacy laws say about when a collection of data is considered to be enough to narrow it down to one particular person.

Well, I'm speaking of US law... which just had a big ruling on fantasy leagues saying the numbers are in the public sphere, and it doesn't matter if it can be narrowed down to a person (as fantasy name/stats definitely do).

[CU Tiger]

It doesn't really matter how obvious it is who they are talking about. Brown has rights to his name and his visual likeness. EA could include a whole player card including all of his physical stats and his football stats and name the player Bim Jrown and be OK.

Thats not true, at least for Brown.

He TRADEMARKED HIS LIKENESS in 1987.
:eek:

[DanGarion]

I get the feeling there aren't thousands of people out there buying up Madden because Browns RB #32 is on it. Let people create legends using the editor.

.

Yeah and then let the players come after us instead because we created his "likeness". What f***ing bs.

[BrianD]

Thats not true, at least for Brown.

He TRADEMARKED HIS LIKENESS in 1987.
:eek:

Which means what...creating a player that looks like him would be bad, right? You still can't trademark your physical characteristics and stats.

[gstelmack]

Brown lost, judge says video games are protected artistic expression:

Federal Judge Rules Video Games are Protected "Expressive Works" - Lawsuit - Kotaku (http://kotaku.com/5369702/federal-judge-rules-video-games-are-protected-expressive-works)

[EagleFan]

Brown lost, judge says video games are protected artistic expression:

Federal Judge Rules Video Games are Protected "Expressive Works" - Lawsuit - Kotaku (http://kotaku.com/5369702/federal-judge-rules-video-games-are-protected-expressive-works)

That's good to hear. If the game was marketed using that "likeness of himk that would be one thing but this is something that most people who play the games don't even give a damn about. I have always disliked the "all-Madden" type of teams which are available.

I wonder how the legends in the current game are handled. I guess there is some sort of contract they have signed as I believe at least names are used (haven't tried them yet and I am going through 360 withdraw at the moment, 5 more freaking days until I can go home!!!).

[JPhillips]

Does this open the door to using the NFL without paying a license fee at all? Seems like use of the corporation should be just as protected as using individuals.

[EagleFan]

Does this open the door to using the NFL without paying a license fee at all? Seems like use of the corporation should be just as protected as using individuals.

Not sure how his is the same? NFL is a corporation with a trademark. Retired individual does not have a trademark on HB #34 with ratings X.

[EagleFan]

dola: With that said I didn't read the article, just the result. I am basically putting off sleep for some reason (kept getting called all night as soon as I got close to sleep, now I can't sleep...).

[JPhillips]

Not sure how his is the same? NFL is a corporation with a trademark. Retired individual does not have a trademark on HB #34 with ratings X.

Artistic expression is rather broad, though. If I have the right to copy an individual why don't I have the right to copy a corporation?

[Passacaglia]

Jim Brown was awesome in Micro League Football.

[SportsDino]

Article sounds messed up, or maybe I am reading it wrong. I don't think it will hold up under that explanation, since you could argue any player, say Tom Brady, is just being 'artistically expressed' and avoid all license payments in general.

Beyond that, in my opinion Jim Brown has a point, but his compensation should be based on real damages. So some fractional pennies when he is considered part of a pool of thousands for a claim of some amount of the revenue.

If no one gives a damn about it, simply remove it from all future games (the historic teams feature, or limit it to NFLPA covered teams). Give out some lump sum payment based on past games and make it so the players have to make a claim for their little bit of the lump sum.

Just because us consumers think something is laughable does not mean that there is no legal case there.

[SirFozzie]

No, because the case is dismissed it means there is no legal case there... :)

(yea, yea, I know probably reversed, etetera)

[M GO BLUE!!!]

Jim Brown was awesome in Micro League Football.

He was pretty good in the NFL too.

[Passacaglia]

He was pretty good in the NFL too.

True. Weird coincidence.

[ColtCrazy]

While he's at it, can he sue EA to make himself and other legends available in the franchise mode without having to do a fantasy draft? At least I could make the Browns relevant again...

[NewIdentity]

I never understood how Fantasy Sports got a free pass on this. They are using real players, live stats, and real teams.


I think it had something to do with being public figures. Do Newspapers, radios, or TV stations pay sports teams and leagues to publish box scores?

[Atocep]

I never understood how Fantasy Sports got a free pass on this. They are using real players, live stats, and real teams.


I think it had something to do with being public figures. Do Newspapers, radios, or TV stations pay sports teams and leagues to publish box scores?

Stats are considered public domain. So it comes down to use of the athlete's names and since they're considered public figures there's really no issue at all here.

[gstelmack]

Stats are considered public domain. So it comes down to use of the athlete's names and since they're considered public figures there's really no issue at all here.

And this required a lawsuit a few years back to verify.

[SirFozzie]

And this required a lawsuit a few years back to verify.

MLB loses ruling regarding Fantasy Baseball, effect on Text Sims - Front Office Football Central (http://operationsports.com/fofc/showthread.php?t=65596&highlight=%22Fantasy+Baseball%22)

[Grammaticus]

Is it really making EA any money?

I didn't even know they still used these All-Team teams. I doubt it'd be a big factor in their sales if they slashed it.

I get the feeling there aren't thousands of people out there buying up Madden because Browns RB #32 is on it. Let people create legends using the editor.

I don't blame him for what he did though, I'm really shocked it wasn't done sooner, and somehow I'm not surprised it is him doing it.

Putting the old players in as an all-time team is just a novelty and does more to keep them relevant that it does to add value to the game.