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The Erosion of Creative Freedom? The Battle over Publicity Rights

July 11, 2012 Article Start Page 1 of 3 Next

[Rutgers professor and lawyer Greg Lastowka explains why he believes that EA should prevail in its case against Rutgers quarterback Ryan Hart, who's suing the company because his likeness has appeared in NCAA Football -- and the considers the broad implications of a loss or a win for Hart.]

Ryan Hart is one of the most famous quarterbacks in the recent history of Rutgers football. He led the 2005 Scarlet Knights to the Insight Bowl, the first bowl game that Rutgers had played in decades.

Four years later, Hart took on another leading role, this time as the named plaintiff in a class action lawsuit against Electronic Arts. Hart's legal team claims that EA has infringed Hart's "right of publicity". Hart also claims EA infringed the rights of other college players by including their information and statistics in EA's college football games without authorization.

Specifically, Hart's complaint is about a nameless quarterback that appears on the Rutgers team in EA's 2004, 2005, and 2006 games. The player wears jersey number 13, is six feet and two inches tall, weighs 197 pounds, wears a wristband on his left wrist, and hails from Florida.

Not coincidentally, that is all true of Ryan Hart. Since the EA games additionally have allowed players to fill in names on team rosters, many people play the nameless Ryan Hart under the name Ryan Hart. Downloadable and accurate rosters of all the featured college teams are currently shared online.

Last fall, a federal district court dismissed Hart's case, explaining that the free speech rights of Electronic Arts trumped Hart's right of publicity claims. Hart appealed and now is arguing his case before a federal appellate court in Philadelphia. Along with several other professors, I submitted a brief to the court explaining why Hart should lose his appeal. Below, I'll explain why.

It's important to see, at the outset, that Hart has a good reason to be bothered by the money being made off his identity. The court that dismissed his case suggested he had been treated unfairly and stated it "appreciates the plight of college players." That plight is primarily about the way money works in college sports.

Ryan Hart was a star Rutgers player during an era when the university was building a new hundred million dollar stadium and negotiating a million-dollar-plus contract with the football team's coach. Universities don't spend money like that without anticipating some significant returns on their expenditures. Yet despite all the money flowing into Rutgers football, Ryan Hart was never paid a dime.

Indeed, Hart could not be paid, because the rules of the National Collegiate Athletics Association forced Hart to be an "amateur". The NCAA excludes any player who takes money from playing NCAA sports. The NCAA's President, Mark Emmert, recently explained that it is "grossly unacceptable and inappropriate to pay players".

Yet while the NCAA says this, its licensing agent, the Collegiate Licensing Company, rakes in over four billion dollars a year in revenues. Since 2005, the CLC has granted EA an exclusive license to make its NCAA football games. When EA includes NFL players in its games, the revenues are shared with those players. The NCAA, however, doesn't share its revenues with players like Hart.

Many people, myself included, think that Hart has been exploited. Undergraduate athletes are too often used and abused as free labor to build multi-million dollar entertainment and licensing empires. We can't shrug this off by thinking that college sports are training grounds for professional play, since it is extremely rare for NCAA players to turn pro. Take Ryan Hart, for example. After graduating from Rutgers, he tried out for the New York Giants, but he did not make the cut. Today, he works in the insurance industry. Even for many star players, this is the standard story.

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E McNeill
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I don't get it. If McFarlane had explicitly named Anthony Twistelli and mocked him, wouldn't it be protected as satire under the 1st amendment? How then can the mere inclusion of a "Tony Twist" be unprotected? I would've assumed this worked like trademarks, where you can't use someone's name to imply their endorsement or authorship, but you're free to include them in the work.

Scary stuff.

E McNeill
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Thanks, Joe. That explains a lot. It sounds to me like the rule is "don't use anybody's likeness without permission, unless you're actually saying something with/about that person."

Greg Lastowka
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I'm biased, of course, but I think the Twistelli decision was wrong and I don't think I misstated the facts of the case. The "Tony Twist" in McFarlane's story was not a depiction of Mr. Twistelli, so it's hard for me to see how McFarlane was somehow "using" Mr. Twistelli to sell books. The only link between the person and comic book was the name of the villain and the fact that both the fictional character and Twistelli were "tough." There was never a claim that the villain in the comic book somehow worked on the public as an endorsement by Mr. Twistelli of Mr. McFarlane's product.

But people can make their own judgment -- as Joe said above, the opinion can be found here:

As I read the facts, McFarlane was just picking names for characters in his books and he chose "Tony Twist" as a name for a certain character. He picked other names the same way. And for picking that one name, he's liable for 15 million? Why? Personally, I think that if a comic book artist wants to name a character in a book after a hockey player, or a famous general from World War II, or a famous figure of any kind, that should not be a problem as long as there is no confusion by the public that the person is actually endorsing the product. With any other rule, artistic freedom suffers with no corresponding public benefit that I can see.

For me, the idea that a court, during a trial, might uphold the use of a celebrity name if it deems it "artistically relevant" is no comfort at all, really. Do we really want to have trials with judges determining, on a case by case basis, what use of particular names are artistically relevant or irrelevant in video games? And arguably, since Twistelli was an "enforcer," the use of his name was relevant here. (The court, of course, says otherwise.) The way this ends up, in practice, is with creators deciding to use either bland or invented names just to avoid the risk of a lawsuit.

Jeremy Reaban
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I think there's a real problem though when it's living people. By associating a fictional character with their name (or image), you're affecting their reputation.

As an example, look at the episode of The Simpsons where a character on TV also is named Homer Simpson and is a bumbling fool that is the brunt of jokes. Even though that's actually accurate, Homer didn't like it and changed his name to Max Power.

The same thing applies here. What if the fictional character is a criminal? Something extremely unsavory?

If Tony Twist were like Wayne Gretzsky and had made tens of millions in his career, sure, it might not be a big deal. But he was pretty much a jouneyman player, essentially just an enforcer who didn't make a whole lot. He depended on his name (his own name) to find work after he was done playing.

TC Weidner
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the 15 million is over board, I'm just baffled why couldnt mcFarlane just admit that he may have subconsciously or otherwise used the name and attributes, apologize and work out a reasonable licensing agreement, but then again if he did that, lawyers dont get a giant payday.

Greg Lastowka
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Inconsistent testimony is certainly never a smart move. But since I don't think any novelist, or screenwriter, or comic book artist, or game developer should fear a lawsuit just for choosing a name for a particular character, I don't really think it's relevant whether McFarlane consciously named his character after Twist or it was a subconscious decision. The question for me isn't about McFarlane's personal ethics or character, it's about whether the legal rule in the case is one that makes sense.

I actually agree with much of what you're saying, though. Actually, I just got back from a conference where I was arguing that online intermediaries (user-generated content companies like Facebook, Flickr, e.g.) have gone too far in appropriating various forms of popular creativity. But making artistic reference to celebrities -- or naming fictional characters after celebrities -- strikes me as a far cry from commoditizing the creativity of individuals. Indeed, one of my problems with the right of publicity generally is that average non-celebrity individuals can't take advantage of it. That's because when you get to the damages phase of a trial, average people can't claim that they are entitled to significant licensing fees.

I concede your point that I'm not a gifted writer, but I still would say McFarlane didn't use Twistelli's likeness to sell comics. What I mean when I say that is that there's an important legal distinction between using a trademark (or name) in commerce in order to sell goods and making reference to a trademark (or name) within an artistic work. E.g. if I put "McDonald's" on my hamburgers and sell them, I'm using that name to sell hamburgers. If I write a book where a character go to McDonald's and eats a hamburger, I am *not* using that name to sell my book.

I think that in the sentence you cite, the appellate court is summarizing the case history prior to the remand and current appeal. It seems to divide the "use of Twist's name" into two possibilities: 1) "artistic expression" or 2) "ploy to sell comics." The court seems to believe that if a writer's inclusion of a personal name is not "artistic expression" (which actually means "artistically relevant" I think), then it must be an appropriation of the publicity right, hence a "ploy to sell." But that just begs the question -- what (beyond the court's claim that the use was artistically irrelevant) makes McFarlane's use a ploy to sell books?

Anyway, as I suggest toward the end of the piece, I'm certainly not shedding tears for poor EA here. Instead, what concerns me is the real risk is that smaller studios and more creative indie game developers will self-censor names and other aspects of their works for fear of infringing publicity rights. The real risk is that we won't see the development of new games that reference celebrities, historical figures, sports figures, etc., by developer *other* than the biggest players who can afford to license those names. And the artistic medium will be poorer due to that fact.

Kevin Reilly
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Greg, it would be nice if you could provide a link to your amicus brief.

First point, the right of publicity is a common law right related to the invasion of privacy tort and likely older than most of the federal statutory rights we take for granted as IP rights. It is true that some states such as California have codified the right of publicity in ways that may seem infuriating, but I think you are using a fairly broad brush regarding the scope and impact of publicity rights on freedom of artistic creativity for developers in order to make your point. Having done a fair amount of licensing for games I can assure you that the owners of copyrights, patents and trademarks are as much of a burden on developers "artistic expression" as the celebrities you cite as a primary problem.

But honestly what "artistic expression" does EA have in a product that merely simulates the real life game, teams and players? You admit the students athletes are getting screwed (and most unlike Mr. Hart do not graduate), but that is really a separate discussion apart from EA's actions. The record in O'Bannon and Keller clearly shows EA knew it did not have the right to use the players likeness, but worked with the NCAA to make the closest facsimiles as possible. Obviously gamers are not paying for any game, they are paying to play with their favorite teams. "If its in the game, its in the Game!" right? EA has also facilitated the importation of player names by leveraging the community of rabid college fans to make it accessible on their servers.

Maybe I am misunderstanding your point of view, but the main argument EA/NCAA have put forward in Keller is that the players have no economic rights to protect (because the NCAA has stripped their rights) thus there is no right of publicity to violate. Their first amendment defenses have been rejected because a realistic facsimile of the players is not sufficiently transformative to deserve protection. Surely arguing there is no economic interest in players name/likeness is hollow argument otherwise why pay the high license fees and go through the trouble of copying the individual players down to the last details?

Finally, I think celebrities and ordinary people have a basic human right to not be associated with a product that has no purpose other than pure entertainment value without their consent.

Greg Lastowka
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Hi Kevin -- I'll take your points by paragraph.

1. Here's the brief:

2. The right of publicity is younger than TM and copyright. TM can be dated back to Roman times and copyright originated in the 17th century. The RoP derives from privacy, which originated in the early 20th century, but the common law misappropriation branch didn't develop until the mid-20th century. So it is pretty new. To the extent TM & copyright impinge on expression, it seems to me that both of those have important public policy objectives. The RoP (not the right of privacy) lacks a convincing theoretical foundation.

3. Are you actually saying there's no artistic expression in the EA game? I'm not crazy about the games, but I don't think it's farfetched to say that the EA NCAA titles are a form of expression. That's what the Supreme Court said in EMA v. Brown, basically. My point about "artistic expression" and "transformativeness" is that I think those are not good tests, even if some courts use them. It is only because of those tests that game creators are wary of including references to living individuals in their works. I realize that players want to play the actual teams and EA builds on that (I start out stressing that fact in this essay), but I don't see why that matters. I'm curious: would you agree that if I wrote a fictional novel that included factual information about a specific college athlete, that I would not need a license to include those facts in the novel? If so -- if referencing facts about a real individual in a fictional novel doesn't infringe the right of publicity -- then why should we treat games as a second-class medium?

4. I don't think the argument is that the NCAA stripped the player publicity rights, it's that they're not violated by the use of the player stats & information in the game -- that's exactly what the trial court found in the case. I think the Keller plaintiffs in California are claiming what you're claiming, that EA and the NCAA essentially conspired to strip the players of their publicity rights in order to exploit them. I think what EA would say in response is that it licensed the team logos/college trademarks from the NCAA, but that the player data didn't fall within the scope of those licenses.

5. I think we have to disagree on this last one: "I think celebrities and ordinary people have a basic human right to not be associated with a product that has no purpose other than pure entertainment value without their consent." So you're saying no references to real people in art without a license? Maybe that's good for licensing revenues, but it's terrible for art.

As a caveat, I realized that people might disagree with me on this one. In fact, in the first 1/3 of the essay I'm arguing that Hart is being treated unfairly, but then in the last 2/3 I'm making the case that he should lose his lawsuit. So I've got mixed feelings about the equities here for sure.

In the end, though, this is where I come out: Game developers should have the First Amendment freedom to make non-misleading references to real people in their work, just like novelists and visual artists do. Games should not be a second class medium for First Amendment purposes.

Kevin Reilly
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Hi Greg,

1. Thanks, will check it out.

2. I think the right has been recognized in some form or another in Europe since the Renaissance. I don't have a link but I know that Albrecht Durer (famous german painter who is likely obscure to anyone not into art history) went through a public trial of sort in Italy to prevent others from using his name in connection with replications of his paintings. Either way, the statutory rights mentioned in the article certainly precede the modern video game era, so calling it a "new" right is a bit misleading. Muddled and frustrating, yes I agree on that point.

3. Are you answering my question with a question?;) I think NCAA is a well made simulation of the real game. Given the emphasis on "realism" I am not sure the art direction comes from an individual choice as opposed to slavish commitment to make the game as realistic as possible. Certainly there is a lot of craftsmanship in the development, but calling it "artistic" is certainly a broad interpretation of the word and I'd hardly call it transformative.

In answer to your other question, I would agree you could use factual references to real people in a book or film or TV because that is protected activity and that you could do the same in a video game as was permitted by CBC v. MLB. However, games are avatar driven experiences and NCAA Football is not a fictional story or merely making reference to current players. The gamer is playing as Tim Tebow or RG3, not as Joe Fan on the couch. Similarly if you wrote a fictional book where the main character was Elvis Pressly and his image appeared on the book, I think that this type of use violates the right of privacy of Elvis because the primary interest in the book (and economic value) is driven by the image and personality of Elvis rather than the quality of the writing. Whether the estate should control such rights after the celebrity is dead is another topic altogether and believe me dead celebrities have no sense of humor.

However this case is somewhat special because the players are not being paid as a condition of their participation in actual football games. But EA derives a direct economic benefit from their use of those likeness/names. EA lost a similar case against former NFL players because it was obvious that EA went beyond using facts and stats to include them in the game without compensation, so I don't understand why there should be a different result in this case. What distinguishes these plaintiffs is they are kids and not retired Hall of Famers.

4. EA/NCAA did argue that the players lacked standing arguing that the players had no economic right pursuant to their agreement to be bound by NCAA amateur regs which prohibit players licensing their likeness rights. That is why players get suspended for selling their jerseys with their names on it. I believe the motion was rejected.

5. You seem to like black/white, yes/no questions to define someone's position. Fine, I will play along. I believe the answer depends on the types of facts used and how they are used in relation to the economic value derived from such use. Not all facts are created equal. Public facts are much different than private facts and should be treated differently. I think my image/likeness belongs to me as an individual and if it is being used to sell a product, regardless of medium, that I disagree with then I think my individual rights trump the artists' rights. If you developed an App with my (admittedly not as handsome as I would like to believe) face and the primary activity was punching my face or causing it to fart, there should be some remedy for such actions. Obviously there is no absolute, but merely saying that there is no way to balance these competing interests in a court means that we need to allow any use whatsoever. Do you really think there should be no limits?

I understand you are making an argument that will draw debate, but your conclusion seems to be narrower than what your article suggests. Also I am by no means arguing for second class citizenship for games, but most developers are not interested in merely using factual references as you surmise in your conclusion.

Thanks again for posting the link and please update on how the 3rd Circuit rules. Lively legal debate on a game developer forum is rare enough!

Greg Lastowka
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Hi Kevin,

2. For me, any right originating in the 1950's is "new" in terms of the law and McCarthy's treatise on the subject states that the modern right of publicity started with Halen in the 1950's. Granted, trademark rights, including rights in names used as trademarks, go back to Roman times, and protections for *authorial* designations are very old as well.

3. I'm not comfortable saying that the EA titles are not artistic because they're realistic. See, e.g., photorealism:
If you want to say that's not your kind of art, okay, but I think the artists would disagree.

4. I think we're disagreeing on semantics. The NCAA rules can't strip the players of existing rights, but they can prevent college students from developing endorsement deals, hence preventing them from proving damages required for standing. So EA/NCAA does argue that the college players have no standing because they haven't capitalized on their celebrity identities -- and it seems to me that's a fair argument, given the state of the law. But I agree with you (and other commentators do too) that if there is going to be a right of publicity, it should not be limited to those who have capitalized on their fame.

5. Re face-punching apps and private facts -- that's why we have defamation law and privacy law. I'm fine with privacy rights -- but I don't think Hart's passing stats and his jersey number are private information. And I'm fine with suits against artists that subject non-celebrities to baseless public shame & ridicule, but again, that's privacy & defamation law, not publicity. Hart isn't being ridiculed at all in the EA game. So I think there should be limits, but that referencing celebrities in artistic works (in ways that do not imply endorsement) should be permitted.

One other thing -- I do think that if Hart loses his case, it calls into serious question whether EA would actually need to license the rights of NFL players for its Madden games. Personally, although that's the practice, I think there's a good argument that any game involving the NFL should be able to use names and likenesses of professional players without a license. But I fully realize that's not the common wisdom in the multi-billion dollar licensing industry! My belief, though, is that the licensing system has moved beyond the existing law that supports it and is pulling the law along after it. For a fuller explanation, see this Yale Law Journal piece by Jim Gibson:

Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale LJ 882 (2007)

I do really enjoy talking about this -- as I was saying on This Week in Law recently, I'm really curious to hear what people think about the right of publicity and its theoretical basis: (starts around 59:10)

TC Weidner
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So EA/NCAA does argue that the college players have no standing because they haven't capitalized on their celebrity identities -- and it seems to me that's a fair argument,
no its not, these games come out after the season is over, once the senior season is over for these players, or if after the season a college player has deemed himself going into the draft, NCAA fangs are removed from them. College players are FREE to capitalize on their identity anytime the wish, they just lose ncaa eligibility to play at the college level. Many forgo that status all the time.

TC Weidner
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oh please, these companies are just playing semantics. Gee a white 6'2 197 pound QB number 13, with a left wristband etc etc, but hey we left the name blank so we are OK, you fill it in wink wink.

Please, I hate when people and companies obviously do things with an intended purpose, and then insult us all by saying, " no we didnt mean to intend it was so and so.."

Just stop.

If you didnt intend to portray this kid as the Rutgers QB in your game, then mathematically speaking it is very unlikely that all these variables would match to reality if indeed the game variables were simply random characteristics. IT becomes even more dubious as we see the correlation over and over through the game and college players.

Either pay the kid/players or make random characters. Its not rocket science.

Michael Rooney
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This is not what this article is about.

Kevin Reilly
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Hi Greg, I read the brief and agree that a predictable test would be a good thing for developers, but I doubt any court will craft a "bright line" that goes beyond your suggestion that public facts and information be freely usable. Certainly worth the read.

I can agree to disagree on whether NCAA Football contains "artistic expression" as opposed to a mere simulation, however it is curious that EA went through the bother and cost of including factual representations of these players but refused to use the players real names in the game. Obviously their license with the NCAA did not include the right to use the student names, but if all they need is the school names/uniforms/mascots etc. to appease the common fan of the game, then surely the absence of these minute details would not have impacted the quality game or their sales. Whether EA crossed the line is debatable and again maybe the simple truism will be proven again that tough cases make for bad law. We'll see.

Unlike you, I don't think the right of publicity should be available only to those who capitalize on their fame. I think it should also be available to those who don't want to capitalize on their images to attain fame or notoriety. If the 1st Amendment protects speech and free association, then surely there is room for individuals to exercise the right to not speak or associate with commercial products that purport to speak for them. If Tim Tebow (who obviously is a celebrity) did not want to appear on the package of NCAA Football (or in the game) for personal religious beliefs, then I think there should be a remedy to address that non-economic rationale.

The arguments in the brief primarily assign economic rationale as the motivation behind celebrities using publicity rights in order to protect their image. I won't argue that is not a factor, but I am not sure I can agree that a legal standard that promotes "artistic expression" of profit seeking manufacturers of products over the right of individuals to prevent such manufacturers from incorporating their personal attributes without consent and approval. For example Jeremy Lin's name (e.g. "Lin-sanity") or Anthony Davis' unibrow ("Fear the Brow") have been used on commercial products without compensation or their approval. Is that a fair and equitable result? Those types of factual uses of their names and personal characteristics are not covered by defamation or rights of privacy. Maybe trademark law applies to such activity, but it is not specifically protected under the Lanham act and it may be difficult to prove consumer confusion. The term "artistic expression" would become the common refrain for any opportunistic manufacturer not willing to negotiate for those rights to avoid liability. This would not only destroy the value of celebrity's image, but it would also discourage legitimate manufacturers from seeking out approval and paying for the privilege to use the name because the incentive to do so would evaporate.

The NFL and NFLPA have a collective bargaining agreement that covers the use of players names and likenesses. You may not like the "common wisdom", but both sides have a common economic interest to work together in certain circumstances to maximize value of those rights. Otherwise there could be a game with the team names/logos and another with the players names/likenesses. This certainly happens with FIFA and Pro Evo Soccer. However developers are willing to pay for such rights b/c exclusivity provides them an edge in marketing their product. So there is "value" created beyond mere name recognition for the celebrity.

I have worked with clients on both sides of the licensing issue and have some doozies when it comes to publicity rights. However given the amount of time and effort that goes into analyzing and clearing potential legal issues related to copyright, trademarks and publicity rights, I can't say that publicity rights (new or not) impose any more of an economic or artistic burden on developers then any other IP rights holders. Digital representations of real world products used for their functional purpose have to be left out due to trademarks, design patents and non-obvious copyright claims in product design. Cloning is rampant (and in some cases encouraged) in game design, but still a DMCA claim for an arguably protectable piece of "expression" in game rules can knock your game off the App store. Vague contracts and sloppy approvals processes result in claims against developers where they had tacit approval (No Doubt). Failing to execute license agreements prior to the launch of your game (EMI case v. Def-Jam Rap Star developers). And lets not forget stepping on a patent held by some group in Texas that literally covers an entire genre of games. The risks are multitude, so it pays to have a good insurance policy that covers the legitimate and not so legitimate IP claims regardless of the burden!:) There are a lot of competing values and economic interests to consider.

Thanks again for the stimulating conversation!

Greg Lastowka
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Hi Kevin,

Thanks for all of that. Just a couple of quick replies:

Re expanding the right to non-celebrities -- I think the right does extend to them, but I think the absence of licensing rates to get a monetary damages remedy limits the attractiveness of a lawsuit. Of course, if non-celebrities want to stay out of the public eye, they do have privacy rights. And if celebrities identities are used in a manner that suggests an endorsement, they have unfair competition law. If Tebow were used on the cover of a game, I'd say he'd have a false endorsement claim.

A lot of this boils down to hunches about value and rights, I think. Some people assume that if something is valuable (like player stats are valuable in the EA game) then that thing should be the subject of property rights. But that isn't always true. Many valuable things are not protected by property rights -- especially when it comes to intangible interests and communication.

I really like your last paragraph -- that's all true and you must have a keen sense of it as a practitioner on the front line. I'm not saying that publicity rights are the most treacherous IP issue for game developers, I'm just saying that there's no good reason (in my opinion) to have them added to the pile of things that limit free expression in games.

Thank you! This was fun!

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