Tuesday, November 16, 2010

Video game spoofing college football players becomes major "right of publicity" case

Katie Thomas has a front page story on the Tuesday Nov. 16 New York times about another wrinkle in Internet law and freedom of speech: the apparent comingling of copyright and “right of publicity”.

The case is a legal battle between former college football quarterback Sam Keller, and a media company called Electronic Arts, along with the National Collegiate Athletic Association and the Collegiate Liscening Company. EA used the players a virtual participants in video games, with name but with the same jersey number and other matter identifying them. The NCAA does now allow product endorsement by college athletes.

The area of law here is “right of publicity” which generally means that a celebrity’s likeness may not be misappropriated for commercial purposes without permission. It’s less clear sometimes when there are legitimate First Amendment speech issues, such as if a blogger writes a post about a celebrity and includes a likeness (and perhaps there ads, making the blog legally “commercial”). For example, on a recent review of a baseball movie (“The Babe Ruth Story”) I embedded a comical video with San Francisco pitcher Tim Lincecum as supporting material (Movies blog Nov. 2).

The link for the New York Times story is here.

Plaintiffs are concerned that any party publishing or distributing any video or image material other than an actual ad could circumvent the right of publicity, denying some people income they feel they have earned. Yet “right of publicity” should not be confused with “copyright”, because you can’t copyright a name or a likeness (but you can copyright a specific image of a likeness).

On the other hand, bloggers who take pictures of celebrities at public events or in discos could be at risk if EA loses.

There was a Supreme Court ruling in 1977 that defended the publicity rights of Hugo Zacchini, a circus performer shot out of a cannonball. The case was Zacchini v. Scripps-Howard Broadcasting Co., with the ruling in Justia here.

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