Electronic Arts, Inc. (EA) is currently facing a lawsuit by football players who claim that the company used their images without permission in the Madden NFL series of games.
The players have expressed concern about the company’s decision to include likenesses of them without their permission and without compensation. EA, on the other hand, claims that they have a right to create these representations of the athletes and should be given First Amendment protection.
The Ninth Circuit’s perspective on these types of cases, according to EA’s petition to the Supreme Court (made available online at scotusblog.com), protects expressive works that use a person’s likeness as long as the depiction “alters” or “transforms” the plaintiff’s image or likeness. EA argues that this rule is “constitutionally perverse” because “it affords First Amendment protection only to fanciful or distorted portrayals, not accurate or realistic ones,” and “chills expression.”
EA argues that they should be protected under the First Amendment. They cite a previous case in which, “The Ninth Circuit acknowledged that…. video games are expressions that enjoy the ‘full protections of the First Amendment,’” and argue that these protections should extend to their game, despite its realism. They also cite issues surrounding the inconsistency with which rules have been applied, and the ways in which some rules conflict. They argue that the court has a responsibility to resolve these conflicts, improve clarity and question what they call “a tort with questionable underlying purposes.”
“These conflicting legal rules have real-world consequences,” states the petition. “Without this Court’s guidance, artists, musicians, and other content creators will remain unsure what standards apply to their expressions and, in particular, whether the realistic depiction of real individuals is tortious. If the realistic portrayal of a person in an expressive work can strip the work of First Amendment protection, then countless creative works are at risk of suit, including films about historical figures or events; unauthorized biographies [and others].”
Despite EA’s claim for First Amendment protection, the Supreme Court declined to grant it, and the lawsuit will continue without the Amendment appeal being granted.
The main argument of the athletes suing EA is an appeal to the Right of Publicity. Ars Technica reports that the right was introduced in 1953 in relation to baseball cards. This right gives people “an economic right in their names and likenesses so they may profit from the commercial value of their identities.”
According to the claim of those suing EA, their right to profit from their own identities was taken away, as they argue that EA used their likenesses, images and identities without receiving their permission or giving them appropriate compensation.
This case is similar to a previous case where NCAA athletes opened a lawsuit against EA for the use of their images in NCAA video games. Endgaget reports that, in July, a judge approved a settlement worth $60 million dollars, so each of the athletes involved will receive approximately $1,600 from EA.
This NFL case is, therefore, the next in a series of court cases that navigate the touchy ground of video game representations or imitations of real-life people. This legal issue tests the balance between allowing creative freedom and freedom of speech for video game makers, and giving the people represented in these games the right over their own images and likenesses.