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11-16-2013, 12:46 PM
LadyStanley's Avatar
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"Transformative Use" of player likenesses/images == violation of right to publicity

This article looks at some of the legal issues related to the NCAA football players suing EA Sports for unlicensed use of their images/stats. EA Sports has dropped the NCAA football franchise as part of this situation.

But looking at the specific points....

...The former players alleged that the EA’s use of their likenesses was unauthorized, since the NCAA’s licensing practice allegedly violated antitrust law, and therefore was a violation of their “right to publicity.” ...

EA’s core defense before it settled was that its video game’s use of player likenesses was protected because it was a “transformative use” of the likeness, and therefore protected First Amendment speech. The transformative use test was created by a court in California and has since been followed by the Third Circuit (covering Pennsylvania, New Jersey and other mid-Atlantic states) and Ninth Circuit (covering the west coast and other western states) as a way to balance individual personage rights against the right of others to create new expression.

EA’s transformative-use argument was ultimately rejected by appellate courts because:

* Similarity of NCAA Football’s avatars to real football players. ...
* Realism of NCAA Football’s gaming environment. ...
* NCAA Football’s player customization feature was probably not being used. ...
In summary, the use of "real" people in video games without their licensing of it seems doomed.

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