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"Transformative Use" of player likenesses/images == violation of right to publicity

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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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11-17-2013, 12:09 PM
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Fugu
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It would be hard to imagine a legal scenario that allows companies to profit from an individual's likeness especially as it pertains to the way they make a living professionally and used to represent that activity.

NCAA athletes aren't doing this professionally (or so we've been told), however the acceptance of an athletic scholarship itself should not strip away any other rights unconditionally and somewhat unilaterally.

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11-17-2013, 12:22 PM
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Why is the NCAA allowed to exist? I mean they don't have the public support of their policies and if they just allowed like an Olympic style where you can get paid for your stuff and image no one would complain about the way it undermines the integrity of the college game

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11-17-2013, 12:58 PM
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Benefit

View it as an individual's right to benefit from their image and/or skill.

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11-17-2013, 01:03 PM
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Quote:
Originally Posted by Roomtemperature View Post
Why is the NCAA allowed to exist? I mean they don't have the public support of their policies and if they just allowed like an Olympic style where you can get paid for your stuff and image no one would complain about the way it undermines the integrity of the college game
I think NCAA's policies (re: amateurism) do have a lot of public support. I personally think the policies should be even stricter. I think the biggest complaint about the NCAA is that their decisions are usually hypocritical. For example, they make big money (schools, coaches, etc.) on one hand but severely restrict what players can make. They also undermine some of their own policies (e.g. death penalties) as not to affect future profits.

I would like to see a stricter sense of amateurism across the board (including programs) or have schools go to U. of Chicago-style system.

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11-17-2013, 02:16 PM
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LadyStanley
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Quote:
Originally Posted by Fugu View Post
It would be hard to imagine a legal scenario that allows companies to profit from an individual's likeness especially as it pertains to the way they make a living professionally and used to represent that activity.
Yeah, perhaps my family should have sued for use of my great-great aunt and great-great uncle's name/likenesses in a computer game that they are historically involved in.

But the game came out 60+ years after their deaths. (Not sure they even tried to find family members to check about inclusion.)

(Came out more than a decade ago. Don't know if there's ever been an updated version for the later OSes.)

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