EA/Madden Likeness Lawsuit Moving Forward...

[CM Hooe]

Quote: Originally Posted by aholbert32

Maybe because Madden was the only game that was using their likeness without permission?

I don't believe this is correct.

I'm reasonably sure both ESPN NFL Football (2K4) and ESPN NFL 2K5 also had historic teams with unnamed players in the same vain that Madden NFL did for years. It was a pretty common practice at the time across a lot of sports games to have unnamed historic teams.

I would surmise the reason EA Sports has been the target of so many lawsuits is brand awareness and money; even at its peak with NFL 2K5, "Madden" was and is still synonymous with video game football, speaking to the perception of the general public, and it always was the bigger and more profitable (but at the time not necessarily better) game.

Now maybe Take 2 did get permission from all the athletes in question, but that wouldn't explain why they didn't have names, haha.

[CM Hooe]

Quote: Originally Posted by 4thQtrStre5S

They have the NFL license and Player Association license. Retired players need to get over it; it is not like they are the reason Madden sells; I bet most people don't even play those players, unless maybe in MUT.

No, the law requires that companies wanting to profit off the use of likenesses of popular public figures must compensate and/or otherwise reach an agreement to use those public figures for using their images in said game or media.

The retired players, Ed O'Bannon, Sam Keller, etc. etc. are not the ones doing wrong here. They are the wronged party in their respective lawsuits. They are the ones (allegedly) being taken advantage of for another company's monetary gain.

[l8knight1]

Quote: Originally Posted by GlennN

The solution is so simple - just allow users to edit players freely. Personally, I don't care whether rosters can be shared or not. If I want a particular player in my game, let me create/edit him.

First, I have a major issue with the money grabbing on this issue simply because there is no clear definition of 'likeness' other than the precedent set with the NCAA case. Heck, those legendary rosters didn't even have the retired players' correct jersey numbers, and they're saying a computerized cartoon is 'ME" and I'm suing you. Jim Brown, for example is the epitome of how not to be remembered and celebrated for his feats on the field. This is happening because there are two huge entities to cash in from, and that's the NFL and EA. They're doing it because they can, and in most cases, former players are signed up based on the lack of benefits and pension they've been provided for in retirement from the NFL. I also think there is a lot of ego driving this as well.

I think fully editable rosters are the solution, however, I think the issue might then be sharing them. With sharing them (we're doing in now, by the way the best we can), EA may hold the responsibility/liability by hosting them on their servers. In summary, the solution is 1. Fully editable rosters, and 2. EA agrees to a deal with the retired players association, and 3. When the lawsuit is settled, it is agreed that EA not provide any blank rosters out of the gate as in the 'legendary teams'.

With all of that said, my guess is EA continues to take the easy way out and avoid the whole issue and continue to lock player appearance in rosters, and feed us the money making Ultimate Team carrots as a sort of replacement. I really hope that is not true.

I don't play MLB The Show. Can someone tell me if those rosters are fully editable? I know they are transferable year to year. If these two items are true, how does The Show get away with it and Madden can't?

[CM Hooe]

Quote: Originally Posted by l8knight1

First, I have a major issue with the money grabbing on this issue simply because there is no clear definition of 'likeness' other than the precedent set with the NCAA case. Heck, those legendary rosters didn't even have the retired players' correct jersey numbers, and they're saying a computerized cartoon is 'ME" and I'm suing you. Jim Brown, for example is the epitome of how not to be remembered and celebrated for his feats on the field. This is happening because there are two huge entities to cash in from, and that's the NFL and EA. They're doing it because they can, and in most cases, former players are signed up based on the lack of benefits and pension they've been provided for in retirement from the NFL. I also think there is a lot of ego driving this as well.

Flat-out false. Right of publicity law is old and well-established, dating back at least to the 1977 Supreme Court decision Zacchini v. Scripps-Howard Broadcasting Company in which the Court found a media organization was not immune via the First and Fourteenth Amendments from civil liability for unauthorized use of a public personality's likeness, in this case that of Hugo Zucchini, a circus stuntman whose for-profit show was video taped and broadcasted without his permission.

I've posted on OS about the likeness test before, I'll dig that up, but proximity to a person's likeness also has court precedent.

EDIT: four other relevant court cases are Hart v. Electronic Arts, In re NCAA Student-Athlete Name & Likeness Litig. (the summary judgment of the Sam Keller case), No Doubt v. Activision Publ’g, Inc., and Brown v. Electronic Arts.

Direct copy-paste from the original thread which I posted these cases:

Quote: Originally Posted by CM Hooe

[The first three] cases established a "transformative test"; is the user of the personality (in this case, the video game developer) transforming the personality to an extent that the representation of personality can be considered an original work, and thus protected under the First Amendment and removing any claim by the plaintiff to a violation of personality rights? In all three cases, the answer was "no"; the defendants (the video game companies) were not transforming the personalities to an extent as to affect their claims to personality rights violations. In the football games' cases, it was found that changing a player's appearance (such as equipment, hair style, etc.) was not sufficient to create an original work, and thus was not protected under the First Amendment. Further, the digital representation of the athletes were performing the same virtual activity as their real-life counterparts did to gain their public recognition - play football. This is also not considered transformative. This is also an evolving section of the law - Brown v. Electronic Arts used a different test to determine whether First Amendment protections applied, and reached a favorable conclusion for EA. This test, the "Rogers test", is a two-pronged test that looks the use of the image as a whole and its artistic relevance. EA has appealed the Keller case judgment on those grounds, wanting to have this standard applied to NCAA Football rather than the previously-described transformative test. Source: Minnesota Lawyer

DOUBLE EDIT: did some more digging, the idea of the "transformative test" goes back as far as the 2001 Supreme Court decision in Comedy III Productions, Inc. v. Gary Saderup, Inc., in which the court found that the use of a likeness of a public figure on a piece of media (in this case, a drawing of The Three Stooges screen-printed onto a mass-produced shirt) was not "transformative"; it was not an original work and relied on the publicity of the Three Stooges to produce revenue.

[DCEBB2001]

Quote: Originally Posted by l8knight1

They're doing it because they can, and in most cases, former players are signed up based on the lack of benefits and pension they've been provided for in retirement from the NFL.

Alas, you have hit upon the number one reason anyone ever does anything...because they can and that is why we have this current mess with battles over the legality/exploitation of likeness.

[4thQtrStre5S]

Quote: Originally Posted by CM Hooe

No, the law requires that companies wanting to profit off the use of likenesses of popular public figures must compensate and/or otherwise reach an agreement to use those public figures for using their images in said game or media. The retired players, Ed O'Bannon, Sam Keller, etc. etc. are not the ones doing wrong here. They are the wronged party in their respective lawsuits. They are the ones (allegedly) being taken advantage of for another company's monetary gain.

reference?

[CM Hooe]

Quote: Originally Posted by 4thQtrStre5S

reference?

Is the post I made two hours ago citing two Supreme Court decisions and three other circuit court decisions about right of publicity laws insufficient in demonstrating that a public figure has a right to control how his non-transformed image is used for for-profit purposes?

[4thQtrStre5S]

Quote: Originally Posted by CM Hooe

Is the post I made two hours ago citing two Supreme Court decisions and three other circuit court decisions about right of publicity laws insufficient in demonstrating that a public figure has a right to control how his non-transformed image is used for for-profit purposes?

I didn't it see it..I don't time to search through all the posts.