EA Sports has been making sport video games since I was playing them on a Sega Genesis. Some of their most popular games are based on college sports; NCAA Baseball, NCAA basketball, and NCAA Football (I'm still waiting for Hockey). The NCAA football game is very popular and a big money maker, 100s of millions in sales. To use the colleges, universities, uniforms and team names EA shares undisclosed royalties with the NCAA. Because the athletes in the games are amateur athletes they are not allowed to make anything off the games. In the games everything about the athletes is used except their name; height, weight, likeness, hometown, and jersey number.
Well now certain former college athletes are bringing suit against EA sports for using their likeness and images in their video games. If the suit is successful EA could owe thousands of current and former players millions of dollars. The trial court ruled in favor of the athletes and EA has appealed to the 9th U.S. Circuit Court.
This lawsuit, which was started by one disgruntled player, has turned into a big First Amendment issue. Hollywood movie studios and lots of other entities have gotten involved. EA's argument is that they use the player images to make works of art in the same way as author's, filmmakers and songwriters who also put real people in their novels, movies and songs. In 2010 a judge ruled against EA when they attempted to be granted free-speech protection and dismiss this lawsuit. The judge said that EA had failed to "transform" the players enough to qualify for protection. Even though the names were removed it wasn't enough because it was still obvious who each player was.
The big concern for EA, and especially Hollywood studios and even the Comic Book Defense Fund, who are also involved, is that a ruling against EA will severely stifle artistic expression. One example the lawyers for EA used was the movie Forest Gump would not be allowed to be made because a lot of celebrity images and likenesses were used. I am guessing Southpark would be in a little trouble too.
The lawyers for the athletes argue that EA's games are based on reality and that realism is the opposite of creative expression. This is also a case that a lot of people feel will make it to the Supreme Court.
I found this case really interesting, and not just cause I am a video game nerd. I work for the Compliance Department and UND and we deal with a lot of issues of what our student-athletes can and cannot do and what will violate NCAA rules. I have been playing the college football game in question for a number of years and it is obvious who the athletes are even if the names are removed. But I can not decide where I fall on this issue because I know how important it is for the college athletic system that we do not start paying college athletes, but on the other hand shouldn't they be rewarded if another company is making this much money off of their likeness? Also, is it artistic expression? Does EA have a protected 1st Amendment right to use these likeness and if they are ruled against how will it affect other industries like the movie business. I am very interested to see how this case works out but I ultimately think EA will win but may have to do a better job "transforming" player images in the future.
Tim Tebow (the chosen one) in the flesh
Tim Tebow in the game (if you couldn't tell)
I play the same video games every year as well, and it is easy to tell who the players actually are(unless you don't follow college sports). I remember when Michael Jordan opted out of being in video games in the 90's, but the Chicago Bulls always had guard 99 from North Carolina who was 6'6''. I fully agree with the student atheletes because just changing names and keeping all other stats is not really artisitic interpretation. EA is just relying that people will know the players (at least the ones on thier favorite teams), they even have the ability to change names to match the real players. I don't beleive that EA has a first amendment protection here.
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