Wouldn't he have to allege that being call the wrong race harms his reputation? I think he would be nuts to make the claim, even if he believed it to be true.

BUT, what if they got his stats wrong, and as a result he was a super-crummy pitcher in the game? That, I think might be actionable!

 Michael Risch -- 3/18/2008 7:58 PM  

Michael and Michael,

I don't see this as a defamation issue at all. It really goes to the players' right of publicity. One of the underlying rationales for recognizing a right of publicity is so that the celebrity/player can control the use of his identity from being used in "shoddy" products or products that the celebrity/player does not want to be associated with (for example, "Here's Johnny" toilets in the Johnny Carson case). If the players are not happy with the quality of the product that this particular company produces, they may have certain contractual rights under their license with this company or they may elect not to give this company a license in the future. The quality of this game could be much worse if the producer didn't need to pay for a license.

An exclusive license (which is not at all uncommon in commerce generally) is not the issue here. Exclusive licenses can be good for the consumer to ensure quality.

 Rick Karcher -- 3/22/2008 7:48 AM  

Rick -

Aren't the rights of publicity in these games licensed to the player's association for sublicensing? I can't believe the video game makers get signoff from every player, though I do plead ignorance of the exact mechanism.

If so, how can there be any standing to sue under rights of publicity? Is it up to the union? Also, it's not that the game is shoddy, it's that facts are misrepresented - a different wrong in my view.

 Michael Risch -- 3/22/2008 1:14 PM  

Michael,

The players' identities for video games are licensed through the players associations. I wasn't suggesting they would bring a right of publicity claim here. "Shoddy" products simply refers to poor quality, which it could be argued is the case if the game is providing false information about players.

So then the question is, what can the players do about it? I'm saying they probably don't have either a defamation or misrepresentation claim. They may have a remedy under their license with the game (which is contractual) and, if they do, it is because they have the right to require a license for the use of their identities -- if they didn't have that right (recognized by right of publicity), they wouldn't have any ability to control the manner in which their identities are being used.

 Rick Karcher -- 3/24/2008 11:15 AM  

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