Video Game Suit: Image Rights vs. Free Speech
Do filmmakers and game producers have a First Amendment right to depict famous athletes without compensating the athletes? How far should the rights of an individual to commercially exploit their likeness extend?
In 2009, Sam Keller (a former quarterback at Arizona State) and other college athletes sued video game publisher Electronic Arts, the National Collegiate Athletic Association and the Collegiate Licensing Company, claiming that their right of publicity had been infringed in the EA games NCAA Football and NCAA Basketball.
In February 2010, Claudia A. Wilken, a United States District Court judge, rejected a request to dismiss the case, and - borrowing a theory from copyright law - the judge observed that Electronic Arts did not sufficiently “transform” the images into a work that would qualify as free speech.
What? Is "transformation" (a standard for "fair use" of copyright material) going to become part of a new standard for when a filmmaker can use someone's likeness without permission? Or is the judge's opinion an aberration? Judge Wilken's opinion is being appealed - so we don't know. Yet.
On Nov. 16th, 2010 the NY Times published a recap, including this statement by Nathan Siegel, an attorney for media companies: “Treating the right of publicity as if it were a copyright — as if you could copyright your name and face — goes too far, and it would give people too much power to control the First Amendment speech of others."
What do you think?