Sports Law Blog
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Wednesday, May 19, 2004

Historical Licensing Deal Rumored: According to the Sports Business Journal and Gamespot, video-game maker Electronic Arts (EA) is close to signing a licensing deal with the NFL Players Association for $1 billion (with a 'b') over four years. This would be an exclusive licensing deal, meaning that no other video-game makers could use NFL team or player names or likenesses during the period. This remains a rumor at this point, even though it was printed in the SBJ and ESPN. A moderator at apparently phoned EA and was told that only a normal licensing deal was being negotiated, though this representative likely had no incentive to be upfront with a stranger on the phone.

If true, this has incredible implications on sports business and the increasing importance of video games. As this article states, video games are now an $11 billion a year industry, with actors and celebrities often receiving hefty fees for lending their names and likenesses to the product. With DVD-quality movies and constantly improving graphics, video games now rival movies for entertainment spending.

This also gives credence to my argument about the value of a celebrity's image and the importance of protecting the right of publicity. In my opinion (see previous post), Professor Volokh does not give enough weight to the incredible value of a celebrity's name and image (his article here). While 1st Amendment rights must be protected, the fact remains that celebrities, including athletes, have a valuable property right in their name and likeness. The fact that a $1 billion licensing deal is seen as credible (even if ultimately proven untrue) further supports this assertion.

So, where should the line be drawn between the 1st Amendment and the right of publicity? As I noted before, perhaps there should be some system of royalties paid to the public figure, if indeed the use of the celebrity's name or likeness increased the value of the product. But some concession should be made for speech with additional non-commercial purposes. For instance, in ETW v. Jireh, Tiger Woods was depicted in a painting called "Masters of Augusta" that portrayed him with other winners of the Masters. This work, as the court held, represented a historical event and Woods's likeness was due to his part of that history. In addition, the Schwarzenegger bobblehead, if truly political satire, could also fall into this category. But a bobblehead of another actor or actress most likely would not. Nor would a portrait of Tiger Woods standing on a non-descript golf course. Yes, this is artistic expression that seems to receive 1st Amendment protection. But some line must be drawn to protect public figures and the valuable property right in their name and likeness.


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