The Ninth Circuit Court of Appeals ruled yesterday that video game manufacturer EA Sports could not use the First Amendment to toss out a lawsuit against its use of the names, images, and likenesses of college athletes without compensation when it produced its line of NCAA football video games. My colleague Joseph Diebold argued that the ruling was significant for the rights of college athletes, both in this case and in former UCLA basketball star Ed O’Bannon’s larger suit against the NCAA and EA.
There’s another side to the ruling, though, as tech journalists at the Washington Post, io9, and the Electronic Frontier Foundation have noted. By dismissing the First Amendment argument, the Ninth Circuit may have made it harder to realistically depict celebrities and public figures in any form of art, including books, video games, and movies like The Social Network. EFF’s Daniel Nazer explains:
In balancing Keller’s right to control the use of his identity against EA’s right to free speech, the Ninth Circuit applied the deeply flawed ‘transformative use’ test. This test…asks whether the use of someone’s identity is transformative, i.e., creates something new with a different purpose or character. Two judges on the panel found that EA’s depiction of Keller was not transformative. They reasoned that the “use does not qualify for First Amendment protection as a matter of law because it literally recreates Keller in the very setting in which he has achieved renown.
The dissenting judge, who, as Joseph noted, included a biting critique of the NCAA in her dissent, explained the implications of the Ninth Circuit’s decision and why she ultimately couldn’t go along:
The logical consequence of the majority view is that all realistic depictions of actual persons, no matter how incidental, are protected by a state law right of publicity regardless of the creative context. This logic jeopardizes the creative use of historic figures in motion pictures, books, and sound recordings.
If that’s the case, and it certainly could be, that’s an important consequence. The freedom to produce realistic art, and to prevent people like Mark Zuckerberg or any other celebrity from shutting down any artwork that may be based, however loosely, on them, is significant and valuable — it both expands the borders of our artwork and the frames in which we examine and explain aspects of ourselves and our society. That freedom isn’t worth discarding.
At the same time, I’m also sympathetic to the rights of college athletes, particularly football players, who don’t share in the riches they create for other people and businesses. If I’m Sam Keller or Ed O’Bannon, I’d be perturbed by the fact that EA Sports can put an avatar based solely on me into a college football video game and make millions of dollars in profits while I don’t see a dime of it, especially when I had no say in the fact that I’m appearing in that video game. And I’d be perturbed, as O’Bannon is, by the fact that they can continue doing it in perpetuity, even once my college career is over, simply because it is the NCAA that sells my image rights to them. And unlike The Social Network or similar works, the NCAA isn’t licensing out these images and EA isn’t using them to comment or editorialize about them. The licensing is purely for monetary gain, and it’s easy to understand why that feels like an injustice.
Still, I don’t think those two desires — one to protect meaningful, realistic art and the other to expand the rights of college athletes — are necessarily adversarial. The big problem in the Keller and O’Bannon cases isthe fact that college athletes aren’t allowed to monetize their names at all if it violates NCAA rules. The root of the O’Bannon case isn’t that EA Sports uses avatars that represent real athletes, but that the NCAA and EA have conspired to fix the monetary value of athletes at zero by refusing to allow them any compensation for use of their names, images, or likenesses.
Under NCAA rules, college athletes can’t make money in any way that utilizes their names, whether by appearing in a video game or by starting their own business or in any other manner. If those rules were liberalized or eliminated, though, and if we acknowledged that their names and images have value but that they aren’t allowed to take advantage of that or share in the money their names create, it would open the door to respecting athletes’ rights while also allowing EA Sports to continue to do essentially what it’s doing now. EA already does this with its Madden NFL series, which includes player names licensed by the NFL Players Association. That would give athletes a chance to have both a say in the system and a cut of the revenues generated from it (as well as from other ventures, like their own businesses, that some would undertake) while also respecting the First Amendment artistic expression rights the Ninth Circuit may have put in jeopardy Thursday.
Sure, allowing players to control their own names and likenesses for video game purposes would probably require them to form some sort of association that can control and negotiate licensing terms for those who want to take part, and how to do that is another potential complication. Striking the proper balance between two valuable freedoms, especially two as important as the freedom of expression and the freedom from monetary exploitation, is never easy, though, and that’s no excuse for not finding a way to respect and honor both.