There is a gamer battle going on, and it's not just the ones being fought out in the Playstation and XBox worlds of "Ninja Gaiden," "Grand Theft Auto" and "Madden."NCAA athletes, led on by former U of Nebraska quarterback, Sam Keller, want compensation for their likeness use in games by Electronic Arts. The NCAA has been making deals with EA to use the images of college athletes, and the athletes themselves want a piece of the pie.
The NCAA tried to get the case dismissed last year, but the Federal District Court didn't go for it. Apparently, the NCAA has $4 billion in licensing deals that could be affected by this lawsuit.
Of course, a decision here could affect celebrity image use in other venues, from merchandise to feature films.
At the core of the arguments is the idea of "transformative use," which is a test of fair use, whereby a creative work transforms the original idea or object and adds creative value and meaning. In other words, you aren't just profiting from exploiting a celebrity image without some substantial addition of creativity into the mix.
The teams are squaring off on the battlefield, with the obvious players on both sides: the labor unions - SAG, AFTRA and DGA - are arguing against liberal application of the transformative use test. On the other side, you have producers like Viacom trying to argue for protection of the free expressive use that was a keynote of movies like the recent "Social Network" film and countless others that depict real individuals or real life events to some degree.
Another wrinkle is a lawsuit by Gwen Stefani and "No Doubt" against Activision, maker of the Band Hero game. They have also claimed violation of their rights to publicity in that game. Their case is a little different in that they had signed a deal with Activision, giving them rights to use their likenesses. But they didn't anticipate that the game would have them doing things (e.g. Gwen Stefani singing the Stones' "Honky Tonk Woman" in a male voice) that they would never do in reality. Transformative use and creative expression under the First Amendment are being argued by the game producer. Infringement of rights of publicity are being asserted by No Doubt. (They posed for the photo below, for this blog article. Haha. That's a joke, don't you know a transformative use when you see one?? Jeez.)
The battle is on! Anyone want to create avatars and create this "meta-game?" (i.e. a game about the game). We'll call it "The Battle of the Legal Titans!" I would pay good money to give SAG a couple of hard swats!
Hmm... don't steal that idea, I think there might be something there....
More on the NCAA Lawsuit at THR, Esq.
