Former Pros Look to Back Keller in NCAA Football Suit

September 28, 2009 -

Ex-football stars Herb Adderley and Jim Brown seek to formally support Samuel Keller in his lawsuit against NCAA Football game maker Electronic Arts Inc.

Keller, a college quarterback at Arizona State and Nebraska, filed suit against EA earlier this year charging that the game maker and the NCAA unfairly used images of college players in the NCAA Football and NCAA Basketball series of games.

The Associated Press reports that Adderley and Brown wish to file a “friend of the court” brief in support of Keller. Brown, who had filed a similar lawsuit against EA in regards to his depiction in EA’s Madden titles, saw that lawsuit dismissed in Los Angeles last week, as U.S. District Court Judge Florence Marie-Cooper compared videogames to realistic paintings of athletes:

The Madden NFL video games are expressive works, akin to an expressive painting that depicts celebrity athletes of past and present in a realistic sporting environment

Adderley was lead-plaintiff in a class-action suit against the National Football League Players Association (NFLPA) that resulted in a $28.0 million dollar verdict last November.


Comments

Re: Former Pros Look to Back Keller in NCAA Football Suit

Wow! This has bought about a lot of comments! Fundamentaly for me if the rights of an individual have been violated, that is in this case pictures used without consent then the players are in their right to complain and have a course of action. Now, if it is for a monetry gain, then I am saddended as this behavior is the root of a large propertion of societies problems. We are not balanced in our relationships, nor are we fair when considering the effects even if you are pro the game producers.

Re: Former Pros Look to Back Keller in NCAA Football Suit

I can take pictures of people without their consent, and put those in a book with nothing else in it. I can sell that.

Of course you can. But if, as you describe, you use the pictures of those persons and don't in any way add some creative element of your own which is "transformative" but, rather, you merely depict and exploit the persons' images, then you are liable for infringing their rights of publication.

I'll point you to Comedy III Prods., Inc. v. Gary Saderup, 21 P.3d 797, 810 (Cal. 2001), wherein the seller of T-shirts containing a depiction of the Three Stooges was sued by the owners of the rights to the Three Stooges' image and the California Supreme Court found that the T-shirts were not sufficiently transformative and therefore infringing because "the artist's skill and talent [was] manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit his or her fame."

It would seem to me that, contrary to your assertions, there is no protection - at least not in California - for commercially exploiting the image of another without their consent and without adding some creative value of your own to the depiction. If all you do is put conventional pictures of people in a book with nothing else in it and commercially exploit those images by selling your book, you've infringed those peoples' right to publish their image.

And, again contrary to your assertions, it is the right to publication of one's image, name, likeness, signature, voice, etc., which is the rule. It is the uses which aren't infringing upon that right because they don't amount primarily to an exploitation of those rights and which generally fall into some form of protected speech which are the exceptions. Just like rights in a mark or a copyright are the rule and the various uses allowed by the "fair use doctrine" are merely exceptions to the rule. But if the use is nothing more than the naked and unauthorized commercial exploitation of the image, likeness, name, etc., of another, then there's no exception and the rule of right to publish trumps.

Re: Former Pros Look to Back Keller in NCAA Football Suit

Sigh, gamers.

So where, in the First Amendment is the get-out clause that says that things that move under the audiences control can't be expressive works? There are plenty of interactive sculptures in modern art museums. Are they not art no more, opinions on modern art in general aside?

Sigh, gamers. You guys get your rights affirmed, and gamemakers are now allowed to make a whole bunch of games for you that they wouldn't otherwise have, and you're nitpicking. Would you prefer to have some sportsmen (or, more likely, the middle aged bureaucrats who run the sports leagues) control what games you're allowed to see. Or is it you think that professional athletes just aren't rich enough already?

Last time I mentioned the first amendment here regarding these sports leagues games, I got someone (with a freedom of speech quote in his sig, ironically), politely telling me that it didn't apply because of some contract that nobody in the games industry signed, before everybody went back to some entirely moot conversation about monopolistic practices and exclusive contracts.

Guys, I told you so! Nya nya!

Re: Former Pros Look to Back Keller in NCAA Football Suit

Oh yeah, I really want games made where the production process screws people over money they can use real bad. Let me repeat this since people keep on nagging without realizing this:

These guys aren't professionals! They don't get paid millions!

Seriously, stop talking bullcrap like this.

Re: Former Pros Look to Back Keller in NCAA Football Suit

"I really want games made where the production process screws people over money they can use real bad."

How are the athletes being screwed over? They're not losing anything at all, unless you're from some primitive rainforest tribe that thinks photographs of people steals part of their souls. They aren't receiving rent every time someone puts their face in a game, but I'm not receiving 10 pence everytime someone calls me an asshole either. Being deprived of hypothetical royalties if the world worked some random way isn't the same as being screwed over.

 

"These guys aren't professionals! They don't get paid millions!"

The law you want will overwhelmingly benefit the most highly paid professionals - people with expensive names. There is a similar lawsuit to this one ongoing where the plaintiffs are the pro football leagues.

 

"Seriously, stop talking bullcrap like this."

I'm not talking bullcrap and I don't obey orders from you. Welcome to free speech!

Re: Former Pros Look to Back Keller in NCAA Football Suit

The law I want? What law are you talking about? I never said anything about a law, except the one I don't want: One that protects videogames at the cost of screwing over people by letting any game company use their stats and likelyness in games, without any rights to stop it or any profit.

By the way, if you can use people their pictures as you please, how come Woody Allen got 5m out of that lawsuit?

Re: Former Pros Look to Back Keller in NCAA Football Suit

You can't. Not in the United States, at least. aIM hERE may be confusing a "fair use" (e.g., using a photograph of someone to illustrate a newspaper article) and a "for profit use" (e.g., using a photograph of someone in a non-satire or non-parody manner on a for-sale T-shirt). The former is allowed without requiring permission or compensation. The latter isn't.

Re: Former Pros Look to Back Keller in NCAA Football Suit

I'm not confused at all. You seem to be.

'Fair use' is a term relating to copyright law, and people don't, in general, own copyrights to their own images, so it doesn't apply at all. If person A uses a photograph of person B taken by person C (who is usually the initial copyright holder), then 'fair use' allows A to use the work without being restricted by person C's copyright, in certain circumstances. 'Fair use' doesn't relate to Person B at all, (unless he also happens to be person A or person C).

What gives you the right to take someone's photograph and put it in a book, newspaper or documentary film or computer game isn't 'fair use', but 'free speech' (or 'protected speech' in the US). The relevant US law is the first amendment to the constitution and the case law thereof.

Despite your quotes, 'for profit use' isn't a legal term at all, as far as I can tell. However people are, in general, prevented from appropriating a living person's image to endorse their products without their permission. Woody Allen did sue American Apparel using some New York law relating to this, and American Apparel did claim, briefly, that what they were doing was a humorous comment on Woody Allen, and that they weren't claiming Woody Allen endorsed their products. The case, had it gone to court, would have rested on whether the billboard was 'opiniony' enough to qualify as an expression of the company's opinion. There is some sort of borderline between protected free speech and commercial appropriation of an image and, since American Apparel paid Allen for the settlement, we can guess that the consensus of the lawyers involved was that the billboard is likely to have fallen on the 'appropriation' side of the fence). This doesnt' create binding case law however; maybe American Apparel would have won the case.

In the current discussion, however, claiming that Joe Quarterback has skill 5, running speed 10, and fitness 8, and animating him in your game, is a far cry from putting him on a billboard and claiming that he endorses your game, and since Judge Florence Marie-Cooper agrees with me, I seem to be right, as far as the law stands.

 

Re: Former Pros Look to Back Keller in NCAA Football Suit

You're as wrong as wrong can be. The term "fair use" applies equally to any of the uses (educational, satire, parody, political discourse, etc,) which don't amount to an infringement of someone's rights, be it of a person's copyrights or a person's rights to the exploitation of their image and likeness. And "fair use," while perhaps grounded in free speech considerations, is actually hallmarked by the characteristic of it being primarily non-commercial in nature. If you read the Lanham Act, you'll notice that one of the requirements of a valid claim of copyright infringement is that the mark be used "in commerce." Put differently, a non-commercial or not-for-profit use of a mark isn't an infringing use. The same holds true for a valid infringement of the right to exploit imagine and likeness. If the use is primarily non-commercial or not-for-profit, then it's usually a fair and non-infringing use. And infringement of the right to imagine and likeness isn't at all limited to uses which endorse something. As I pointed out before, if I print a bunch of T-shirts with the name and image of Muhammad Ali on the front and proceed to sell them for $20 a pop without having first secured the permission of Ali or CKX, Inc. (the individual and the company who respectively own a 20% and 80% share of the right to market Ali's name and likeness), I, without doubt, would be infringing upon those rights - rights for which, coincidentally, CKX, Inc. paid Ali $50 million for that 80% share.

Ever watch an episode of "Cops" and seen where the faces of some individuals appearing in an episode were digitally blurred? Those are the faces of individuals who refused to sign a waiver of their right to exploit their likeness or from whom, for whatever reasons, the producers were unable to secure a waiver. If the producers of "Cops" don't secure such a waiver, then they have no right to publish the individual's image and must therefore mask said image or risk being sued for infringement.      

Re: Former Pros Look to Back Keller in NCAA Football Suit

"The term "fair use" applies equally to any of the uses (educational, satire, parody, political discourse, etc,) which don't amount to an infringement of someone's rights"

Bullshit. Just copyright and trademark law. Go read a book on the subject. Hell, you could at the very least have looked up wikipedia, since you're on the net.

"And "fair use," while perhaps grounded in free speech considerations, is actually hallmarked by the characteristic of it being primarily non-commercial in nature."

There are commercial considerations in fair use, certainly. But is, say, the New York Times "primarily noncommercial" in nature? Hell no, it's in the business of selling pages with photographs in them, for shareholder profit. So how do you think they can print news photographs under fair use? You make no sense, even if I was to accept all the completely bogus things you say.

"If you read the Lanham Act, you'll notice that one of the requirements of a valid claim of copyright infringement is that the mark be used "in commerce.""

Wrong again. Lanham act relates to TRADEMARK law, not copyright law. It's hard to see how you could be more wrong here.

"Ever watch an episode of "Cops" and seen where the faces of some individuals appearing in an episode were digitally blurred? Those are the faces of individuals who refused to sign a waiver of their right to exploit their likeness. If the producers of "Cops" don't secure such a waiver, then they have no right to publish the individual's image and must therefore mask said image or risk being sued for infringement. "

Not quite. What's happening there is that broadcasters are so paranoid about litigation (probably rightly) that they blur the faces to preempt all the multiple stupid lawsuits that could arise. For example, if a televised cop arrests a murderer on the street, it's possible that some passerby with an ambulance chaser for a lawyer would get it into his or her head to sue the broadcaster for defamation on the grounds that they are being associated with a felon. Obfuscating the faces does stop many of these types of meritless lawsuit from even getting off the ground. It's not a response to any specific type of infringement, but just a learned response to the litigousness of the general public.

 

Re: Former Pros Look to Back Keller in NCAA Football Suit

I said that the use of the image need be primarily commercial in nature. You confuse that with the commercial nature of the user. If the case was as you claim, then the fair use exception would be rendered a complete nullity when used by any entity other than a 501(c)(3) non-profit. Wouldn't it? The use by a newspaper of a person's image in a photograph accompanying an article is an adjunct to selling newspapers and thus a fair use. Not so if the selling of the person's image is the primary business concern. Similarly, the fair use of quoting copyrighted material in a textbook for educational purposes is still a fair use notwithstanding the fact that the textbook is offered for sale. Rather, it it because the textbook is the primary subject of the commercial transaction and not the quoted material therein that makes use of the copyrighted material a fair use.  

More generally, I'll let the Second Circuit explain to you the right to publicizes one's image:

"We think that, in addition to and independent of that right of privacy (which in New York derives from statute), a man has a right in the publicity value of his photograph, i.e., the right to grant the exclusive privilege of publishing his picture, and that such a grant may validly be made 'in gross,' i.e., without an accompanying transfer of a business or of anything else. Whether it be labelled a 'property' right is immaterial; for here, as often elsewhere, the tag 'property' simply symbolizes the fact that courts enforce a claim which has pecuniary worth. This right might be called a 'right of publicity.'"  Haelan Laboratories v. Topps Chewing Gum (1953)

If, as you claim and contrary to the holding in Haelen, a person has no right to exploit their image, then for what has CKX, Inc. paid Ali $50 million?* In fact, not only is there a well-recognized right to sole exploitation of one's name, image, and likeness at common and statutory law, there's even a recognized right to exploit the sound of one's voice. 

And I stand corrected. I meant "trademark" where I said "copyright." You'll notice that I afterwards went on to incongruently refer to a "mark."

Perhaps "Cops" was a poor example. I'll retract and replace it with a taped performance of Jill Scott and her band aired on BET in which every shot of her bass player had his face - but his face alone - blurred. Any speculations as why they'd have to do that?

 

___________

*"CKX Partners with Muhammad Ali; Company Acquires 80% Interest in Name, Image, Likeness, Trademarks and Existing Licensing Agreements of the ''Greatest of All Time.'''  Business Wire, April 11, 2006

 

 

Re: Former Pros Look to Back Keller in NCAA Football Suit

"The use by a newspaper of a person's image in a photograph accompanying an article is an adjunct to selling newspapers and thus a fair use."

Misuse of the term 'fair use' aside, I can take pictures of people without their consent, and put those in a book with nothing else in it. I can sell that. If you don't believe me, go to the photography section of your bookstore. You'll even find books whose primary aim is to collect pictures by some famous photojournalist (I recommend Henri Cartier Bresson, by the way, but YMMV) and put them together in book form. What are those pictures an adjunct to? An adjunct to selling people the preface, or an adjunct to selling the captions explaining what the pictures are? There are photojournalism news agencies that do nothing but sell news photographs (often with people in them) to newspapers. That's their primary business. How does your bogus and entirely non-legal conception of  'fair use of people's images as long as it's not the primary business' cope with that? Answer: it doesn't. You've been talking a lot of nonsense.

In fact,real bona-fide fair use for copyright purposes (as opposed to your bogus "fair use")  might even be the foundation for your business model - for example online news aggregators, such as Google News, or review aggregators like metacritic. The clearest commerciality consideration in bona-fide copyright fair use relates to the effect of the new work on the value of the original, and it's place in the commercial market. Whether the new work is commercial might have an effect on the efficacy of the 'fair use' defence, but it's somewhat less relevant.

In reality, there is no "fair use of people's images", and people's images can be used both commercially and noncommercially in speech for almost any reason whatsoever, barring some privacy issues, defamation, and the appropriation of people's images to advertise some product or other.

"If, as you claim and contrary to the holding in Haelen, a person has no right to exploit their image, then for what has CKX, Inc. paid Ali $50 million? "

I didn't say that a person has no right to exploit their image. I'm saying that there are a large swathe of 'free speech' rights that allows people to take images of people and put them into creative works, newspapers, TV programs, games, whathaveyou. And I also said that this is a good thing for everyone, except a few rent-seekers. There is some right to control your image, but not as much as people here seem to believe, or (perversely, in my view) seem to want. What rights you have over your own image are the exception, rather than the rule.

"Any specualtions as why they'd have to do that? "

I have no idea about this band, or this case, but there are plenty of explanations that don't involve the bass player having a legal right to his image. Perhaps the band said 'we won't play at all unless you blur out the bass player's face'. Perhaps he had an obscene tattoo on his forehead that was not fit for primetime.  Perhaps he was Elvis, and the Biased Liberal Media didn't want you to know he was still alive, because of the Sinister Zionist Plot To Sap And Impurify Their Precious Bodily Fluids By Destroying Honest American Rock N Roll And Forcing People Listen To Rap Music. You heard it here first!

 

 

Re: Former Pros Look to Back Keller in NCAA Football Suit

Not here either by the way, "portrait right" is how I'd translate the word for it literally.

Re: Former Pros Look to Back Keller in NCAA Football Suit

These are college football players. They aren't payed money, they aren't allowed to be. We're talking about college students who have their likenesses in college football games, yet are not asked for permission and are not given any compensation. If someone was making millions of dollars with YOUR face/body/stats, and you didn't get shit, let alone even being asked for your permission, wouldn't you be pissed?

-If an apple a day keeps the doctor away....what happens when a doctor eats an apple?-

-Optimum est pati quod emendare non possis-It is best to endure what you cannot change-

Re: Former Pros Look to Back Keller in NCAA Football Suit

"If someone was making millions of dollars with YOUR face/body/stats, and you didn't get shit, let alone even being asked for your permission, wouldn't you be pissed?"

As long as they weren't misrepresenting what I said, thought or did, no. In fact, HELL NO. Why are computer games so different from books, movies, the TV news or newspapers? Nobody needs my permission to write a book about me, or take a photograph of me to illustrate a newspaper article (that has happened, to illustrate a story on homelessness, no less, so I've already been in a similar position to your poor helpless starving athlete).Why should they need permission to depict me as a sprite in a game?

If EA are making beeellions while your favourite college athlete is starving in a garret, that's a problem with the distribution of wealth generally, and not a good excuse for depriving everyone of their freedom of speech. Besides, there are poor gamemakers and rich athletes too, you know, and suspending the first amendment for your starving college athlete would also have the effect of forcing the poorer half of the games industry to pay rent to the rich half of the sports industry.

Re: Former Pros Look to Back Keller in NCAA Football Suit

"Nobody needs my permission to [...] take a photograph of me to illustrate a newspaper article". That's news, though, not a game. And wasn't the first amendment free speech, not "take people their pictures and do with 'em whatever you want"? Giving them the money for the use of their looks and stats just like professionals get, isn't a suspension of free speech.

Re: Former Pros Look to Back Keller in NCAA Football Suit

Last time I checked, I wasn't able to control a painting.

Re: Former Pros Look to Back Keller in NCAA Football Suit

JIm Brown and Raquel Welch. Go, Jim!! Go!! Handle up your bizniz! Wid ya bad self!

Re: Former Pros Look to Back Keller in NCAA Football Suit

Ok this is getting old and annoying as far as I'm informed their problem is not with EA but the NFLPA.

Re: Former Pros Look to Back Keller in NCAA Football Suit

College atheletes want to get paid to have their likeness used in a video game. It is fair considering that a gaming company is making money off of their likeness.

I wish EA would just go back to making stuff like Mutant League Football, personally.

"

Re: Former Pros Look to Back Keller in NCAA Football Suit

You're not very well informed. The plaintiffs are college football players, not professional football players. What would the NFLPA have to do with this? Isn't the NFLPA the union of professional football players?

 
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