Legal World of Video Games

The Right of Publicity and Video Games

Every once in while a story might pop up in the news that has you scratching your head. College football players suing EA for using their likeness in their NCAA video games. Manuel Noriega, the military dictator of Panama from 1983 to 1989, suing Activision for his inclusion in Call of Duty: Black Ops II. Under what legal theory are these individuals able to bring suit (with varying degrees of success) against these gaming companies? The answer is the right of publicity.

The right of publicity is defined as, “the commercial value of a person’s identity by using without consent the person’s name likeness, or other indicia of identity for purposes of trade.” This right prevents the unauthorized commercial use of an individual’s name, likeness, or other recognizable aspects of a person’s persona. This means that it gives an individual an exclusive right to license the use of their identity for commercial promotion. An example of this would be slapping a picture of Beyoncé on a t-shirt and then selling it. The only reason people are purchasing your t-shirt is because her image is included on it. You are directly piggy backing off of her fame to turn a profit. The law recognizes that she has a right to prevent you from doing this and recoup the financial gain you reaped.

You might be thinking to yourself, “It’s a free country with free speech. The first amendment allows me to do this.” The answer to that is, “It depends.” Way back in 1977 the Supreme Court tackled this question in Zacchini v. Scripps Howard Broadcasting Co. Zacchini was a human cannonball and felt he had been wronged by Scripps Howard broadcasting his performance on television. In those days, you hyped the hell out of your act and then sold tickets to the event. If someone played it over the air the likelihood of people seeing it in person went down. This means Mr. Zacchini isn’t making the same money he was before. We love watching people shoot themselves out of cannons and by broadcasting these acts without compensation we will discourage these types of performances. The Court agreed and merely held, “[w]herever the line in particular situations is to be drawn between media reports that are protected and those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer’s entire act without his consent.”

Whenever the Supreme Court does something like this it means the lower courts have to do the dirty work of fashioning some sort of test. In this case, how to balance the First Amendment protections against this new right of publicity protection.  So now we have: (1) the Restatement approach; (2) the transformative use test; (3) the predominant use test; and loosely (4) the Rogers test.  Thanks, Supreme Court. For the law nerds, I’ll provide a brief overview of what exactly the transformative use test is. Otherwise, skip on down to “The Right of Publicity Clashes with Video Games”

The Transformative Use Test

The California Supreme Court formulated the transformative use defense in Comedy III Productions, Inc. v. Gary Saderup, Inc. The defense is, “a balancing test between the First Amendment and the right of publicity based on whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation.” Further broken down, the five considerations courts must consider are whether: (1) the celebrity likeness is one of the raw materials from which an original work is synthesized; (2) the work is primarily the defendant’s own expression if the expression is something other than the likeness of the celebrity; (3) the literal and imitative or creative elements predominate in the work; (4) the marketability and economic value of the challenged work derives primarily from the fame of the celebrity depicted; and (5) an artist’s skill and talent has been manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit the celebrity’s fame.

The question when using the transformative use test is not whether a particular work loses its First Amendment protection. Instead the question is “whether the interests protected by the right of publicity are sufficient to surmount the already-existing First Amendment protections.” Thus the question becomes “has an individual’s identity been sufficiently transformed?” Identity encompasses “not only [an individual’s] likeness, but also his biographical information”.

In order to accomplish this goal in video games, the Third Circuit utilized the transformative use test only upon the specific avatar at issue rather than the entire creative work. To do so otherwise would mean that “[a]cts of blatant misappropriation would count for nothing so long as the larger work, on balance, contained highly creative elements in great abundance.” Further, the Third Circuit also clarified that in the video game context the mere ability to alter an avatar’s appearance would not serve as a shield to right of publicity claims. To do so otherwise would mean even blatant instances of misappropriation could duck liability by letting the user alter the avatar in some fashion.

The Right of Publicity Clashes with Video Games

At the time Zacchini was decided video games were just starting to boom. Today, video games employ over 120,000 people and rival the size of the motion picture industry in terms of overall revenue. Video games got their start in 1972 thanks to a small bar named Andy Capp’s Tavern in Sunnyvale, California. A new company called Atari, Inc. chose to debut their first game, Pong, at the bar largely due to their good relationship with the bar’s manager Bill Gattis.

Pong would later become the first arcade game to reach widespread success and allow Atari to dominate the gaming scene through the 70’s and 80’s. Since then, video games have become a past time for most Americans and have progressed far beyond the iconic black and white game board of Pong. Now games feature stunningly realistic representations of real world locations and people. Much like you could print Beyoncé’s face on a t-shirt so could you also recreate her digitally in a video game. That’s a problem for Beyoncé.

The courts have decided that video games qualify for First Amendment protection but when you throw Beyoncé in your game then you’re going to need one of those balancing tests listed earlier. The First Amendment is inherently limited by the right of publicity. But rather than spend a bunch of time talking about how it does this in theory, let’s dive into the cases mentioned earlier.

In re NCAA Student-Athlete Name & Likeness Licensing Litigation

In re NCAA Student-Athlete Name & Likeness Licensing Litigation, decided in July of 2013, involved the Ninth Circuit balancing the right of publicity of a former college football player against the First Amendment right of a videogame developer.  EA produced the NCAA Football series of videogames. It allows players to control various avatars representing college football players.  EA subsequently attempted to replicate the players and each schools’ team through jersey numbers, height, weight, build, skin tone, hair color, and home state.  Moreover, EA would send questionnaires to team equipment managers and study highlight reels in order to match unique play behavior.  The NCAA forbids the use of actual player names. So… EA just goes ahead and omits the players’ names on their jerseys while assigning each player a home town that is different from the actual players’.

Keller, a starting quarterback for Arizona State, objected to the use of his likeness and filed a putative class-action alleging EA violated his right of publicity.  Keller argued that his physical characteristics have been replicated and realistically portrayed.  Moreover, the substance of the game is the same as users control Keller’s avatar playing football in various stadiums. Relying upon the transformative test, the court found this reasoning persuasive and concluded that “EA’s use of Keller’s likeness does not contain significant transformative elements such as that EA is entitled to the [First Amendment] defense as a matter of law.”  On July 16, 2015 final approval was granted for a $60 million settlement between the NCAA, Electronic Arts, and the student athletes who brought the right of publicity claim.  This won’t be the last lawsuit of its kind and other similar claims are filtering up through the courts.

Manuel Noriega v. Activision/Blizzard, Inc.

Following this case Panamanian dictator Manuel Noriega brought a claim against Activision and Blizzard for his use and portrayal in “Call of Duty: Black Ops II”.  At specific issue was “Suffer With Me” the seventh mission in the campaign where the player is tasked with capturing Noriega and destroying his reputation.  During the mission players encounter Noriega’s “life-like computer-generated character [that is] the villain the player… must annihilate and humiliate.”

Noriega contends that he has been portrayed as nothing more than what he is, in the setting in which he gained his notoriety.  Noriega argues that much like No Doubt and Keller, he is referred to by, “the same name, is called by the same monikers (i.e., “Pineapple Face”), has the same build, the same facial features, and the same outfits and is in the same setting as he was when he became well-known.”  Noriega concludes that when a defendant, “uses an exact depiction of a band, a college football player, or a General in its videogame, it has violated that person’s right of publicity.”

The court was unimpressed and dismissed Noriega’s complaint with prejudice.  The court found two factors dispositive in determining that the use of Noriega’s likeness was transformative.  First, defendant’s use of publicly available photographs to create Noriega’s avatar was a small part of extensive “raw materials” used to make the game.  The court doesn’t elaborate on this point but concludes it is transformative. Second, his depiction was not the “very sum and substance” of the work and was de minimis compared to the whole.  Finally, the court concluded saying that the “marketability and economic value of the challenged work in this case comes not from Noriega, but from the creativity, skill and reputation of defendants.”  This case is very similar to In re NCAA but is victim to having a detestable plaintiff that the court is unwilling to reward. EA also crafted its games using extensive “raw materials” from surveys and publicly available data. Each individual college football player did not constitute the “very sum and substance” of the work and yet an opposite conclusion was reached. Similar facts, opposite conclusion.

Conclusion

The legal waters surrounding this right of publicity are murky and change depending on where you go. California happens to be a large nexus where these cases get decided. It’s no wonder when this is the home of Hollywood and several large and influential gaming companies. These cases can and do have a large impact on the industry. EA has just decided to abandon the NCAA series of video games rather than come to the table and work out an agreeable licensing deal for college athletes. Cases of these kind won’t be going away any time soon.

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Origin No Longer Available in Myanmar

Reddit user trivial_sublime reached the top of the /r/all today after reporting that EA has shutdown access to Origin in Myanmar. The country, located in southeast Asia and hugging Thailand, had sanctions imposed in 1997. Also known as Burma, the sanctions were imposed as a direct result of the army’s refusal to cede power to a civilian government. Over the past five years the United States has been rolling back sanctions due to the slow transition to a civilian government. This finally came to an end in November of last year when Ms. Suu Kyi was elected through Myanmar’s first civilian elections. On October 7th of this year, President Obama signed an executive order detailing the termination of the Burma sanctions program.

“[The then-governing regime of 1997 Burma]… has been significantly altered by Burma’s substantial advances to promote democracy, including historic elections in November 2015 that resulted in the former opposition party, the National League for Democracy, winning a majority of seats in the national parliament and the formation of a democratically elected, civilian-led government; the release of many political prisoners; and greater enjoyment of human rights and fundamental freedoms, including freedom of expression and freedom of association and peaceful assembly.” – October 7, 2016 Executive Order

As a direct result of the termination of the Burma Sanction Program (“BSR”) there are going to be several immediate changes:

  • All individuals and entities blocked pursuant to the Burmese Sanctions Regulations (BSR) have been removed from OFAC’s [Office of Foreign Assets Control] Specially Designated Nationals and Blocked Persons (SDN) List.
  • All property and interests in property blocked pursuant to the BSR are unblocked.
  • The ban on the importation into the United States of Burmese-origin jadeite and rubies, and any jewelry containing them, has been revoked.
  • All OFAC-administered restrictions under the Burma sanctions program regarding banking or financial transactions with Burma are no longer in effect.

For more on the above click here. A more in depth summary of the BSR can be found here:

What is unclear is why EA has decided to implement these changes now with their Origin 10 update and not 20 years ago when the sanctions were implemented. It is especially unclear since U.S. based Steam, offering a similar service, has no such barriers in place. It is important to keep in mind that all of the information we have so far is second hand from a volunteer named DarkAmaranth1966 on the EA support forums. We likely won’t know more until EA makes an official statement or I can get my hands on an Origin 10 update log. Hopefully there is more than “made changes for US compliance”.

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Why can digital distributors do this?

When you use a service like Origin or Steam you are subject to their Terms of Service. Included in this document is this bit of legalese:

license-2

EA and similar companies usually have a plethora of licensing terms similar to this. If you’d like to look over all the ones that a large corporation like EA uses head here.

What the above means is that when you use their service and purchase their games you don’t actually own the games in the way that you might think. In order to understand what’s going on here we need to dive into copyright law a bit.

Copyright Law

Copyright law protects original literary, dramatic, musical, and artistic works such as drawings, written works, music, and computer software. Say you created a painting, song, or story. At the moment of creation, you own a copyright in that product. Registration is available if you’d like to go that route but it isn’t necessary since the right is formed when you’ve completed the work. Now, as a copyright holder in the product you have several rights. You may prevent third parties from copying, converting, or publicly performing the work.  This right isn’t absolute and has some limitations. One such limitation is known as first-sale doctrine.

First-Sale Doctrine

The first sale doctrine creates an exception to your normal bundle of rights. It provides that when you sell something that physically embodies your work (like a book) then you have exhausted certain rights in that product. This means that the person who bought your book dispose of it however he wants. He can burn it, give it away, sell it, or even rent it out. What he cannot do is copy it. Now this applies to video games as well. When you bought Super Smash Brothers for the N64, you purchased a copyrighted work in a physical embodiment (the cartridge). You could do whatever you wanted with that cartridge but you could not copy it. Now this is a problem for gaming companies. If they sell you a game and then you turn around and sell it to someone else, they have lost a sale. Thanks to the explosion of digital distribution software, such as Origin and Steam, companies have discovered a way to get around this bugaboo. Licensing.

Licensing

A license means you have the right to possess something (subject to a contract) but you don’t have ownership of it. It’s kind of like renting something but more complicated. When I sell you a book, you now have ownership over the book but not the work contained within. So you can do whatever you like with the book except copy it. Now what if you could copy that book as easily as a couple taps on the cover? You could just go to a library, rent a book, and then copy it as many times as you wanted. The solution is to have the author hold the book up to your face whenever you wanted and turn the pages for you. If you so much as reached for the cover he could snap it shut and walk off. If you so much as annoyed the author or did anything else on his list of “no-no’s”, he could snap it shut and walk off. That’s basically software licensing (also eBooks).

In the hypothetical above: the book is our game, the author is our digital distributor, and our list of “no-no’s” is our terms of service agreement. Let’s bring this all back to the start. EA has stopped their service for everyone in Myanmar. For whatever reason, “being in Myanmar” is now included on their list of “no-no’s” and they’ve walked off. This could absolutely be some sort of compliance with new government regulation. Now courts don’t always look so kindly on terms of service. You’ve paid for a product and having someone arbitrarily able to take it away whenever they like is frowned upon. So it remains to be seen how things will shake out but the purpose of this article isn’t to speculate but rather dip our toes into the circumstances surrounding this sort of thing. Namely, the revoking of access to games you’ve paid for.

For more information on the issue of video games and the first-sale doctrine check out this excellent law review article by Stephen McIntyre: http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2018&context=btlj

-Arthur

P.S. If someone can dig up the Origin 10 change log I’d appreciate it and would like to update the article when I’ve given it a look.