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

http://techcrunch.com/2013/11/15/rig...rated-content/

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....

Quote:
...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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