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Sunday, August 03, 2008

Jim Brown's Lawsuit Against Video Game Company Puts Fantasy League Ruling to the Test

Bloomberg News reports that Jim Brown filed a lawsuit last week against Sony and Electronic Arts alleging that the unauthorized use of the character in the "Madden" football video game, part of the "Real Old School Teams and Players'' series -- a muscular, African-American running back wearing the number 32 jersey who is featured in the game's "All Brown's Team" -- violates his right of publicity. There will be two main defenses asserted here, neither of which is very compelling.

The first defense will be that Jim Brown's name and picture are not being used, and therefore his identity is not being exploited. However, it is well-established by case precedent that the identity element necessary for a right of publicity cause of action is met when there is a sufficient link between the particular plaintiff and the defendant’s use, in other words, that the defendant is actually referring to the plaintiff. In Doe v. TCI Cablevision, the court explained: "To establish that a defendant used a plaintiff's name as a symbol of his identity, the name used by the defendant must be understood by the audience as referring to the plaintiff....In resolving this issue, the fact-finder may consider evidence including the nature and extent of the identifying characteristics used by the defendant, the defendant's intent, the fame of the plaintiff, evidence of actual identification made by third persons, and surveys or other evidence indicating the perceptions of the audience." In Jim Brown's case, the defendants will have a difficult time convincing a court that those playing the video game do not understand that the character in the game is referring to Jim Brown. Here are a few cases that support Brown's case against EA:

Carson v. Here's Johnny Portable Toilets, Inc. -- held the phrases “Here’s Johnny” and “The World’s Foremost Commodian” were clearly referencing Johnny Carson even though his name wasn't being used.
Ali v. Playgirl, Inc. -- held that the defendant’s use of a drawing of a black man seated on a stool in the corner of a boxing ring captioned as “Mystery Man” and “the Greatest” sufficiently identified Muhammad Ali even though his name and picture were not being used.
Hirsch v. S.C. Johnson & Son, Inc. -- held that use of the name "Crazylegs" on a shaving gel for women violated the right of publicity of a famous football player named Elroy Hirsch, who had been known by this nickname.
Motschenbacher v. R.J. Reynolds Tobacco Co. -- held that the image of a race car driver in a red racing car with a white pinstripe and number "11" sufficiently identified a professional race car driver whose number "71" race car was always in red and white with the same pinstripe.
White v. Samsung Electronics America, Inc. -- court found that the use of mechanical robots clearly resembling Vanna constituted a violation.

Jim Brown's case is similar to the use of identities of amateur players in video games, which I discussed in a "Letter to Tim Tebow" back in December.

The second defense most likely to be asserted is that the First Amendment trumps the right of publicity. The defendants will most likely rely on the Eighth Circuit's recent decision in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., whereby the court applied a precarious "public domain" standard to hold that the use of names and statistics of professional baseball players by fantasy leagues without authorization is protected by the First Amendment.

Jim Brown's case highlights why the Eighth Circuit's public domain standard simply does not work in evaluating when the First Amendment outweighs a right of publicity claim. Jim Brown is a high profile former professional athlete and public figure. Thus, by definition, he is in the public domain. A public domain standard would essentially eliminate ALL right of publicity causes of action where the defendant uses a high profile person's identity without authorization in every single context, whether that be unauthorized use in fantasy leagues, video games, trading cards or advertisements.

As I advocated in my Penn State Law Review article, the only practical standard to apply in determining whether the First Amendment trumps a right of publicity claim in a given context must focus on whether the primary use of the plaintiff's identity by the defendant constitutes an expression protected by the First Amendment (e.g. news reporting, opinions and critiques written in magazine and internet articles, parodies, artistic expressions, etc.). While fantasy league use, video game use, trading card use and use in advertisements serve an ancillary function of informing the public (a legitimate First Amendment concern), the primary use in these contexts is simply not to inform the public.

If this case does not settle, it will ultimately test the limits of the Eighth Circuit's decision. And even if it settles, this case highlights the confusing and nonworkable standard adopted by the Eighth Circuit. This lawsuit also raises the question whether video game companies have the right to continue to commercially exploit the identities of amateur athletes without their authorization.

-- Posted by Rick Karcher @ 8/03/2008 08:45:00 AM -- Comments (17) -- Post a Comment

17 Comments:

In Jim Brown's case, the defendants will have a difficult time convincing a court that those playing the video game do not understand that the character in the game is referring to Jim Brown.

Brown retired decades ago. I seriously wonder how many of the mostly young people who play Madden Football have even heard of him.

Peter -- 8/03/2008 10:34 AM

Most players of the game will have no idea who Jim Brown is nor will they care. Jim Brown is an angry human being, angry at the world. He is not from Africa either. As far as testing the 8th Circuit: please, please do! In fact, go ahead and vehemently disagree so that the case can (hopefully) go to the Supreme Court who can then, once and for all, make the decision that in the internet era, professional athletes simply no longer have control over their statistics whatsoever.

Anonymous -- 8/03/2008 1:51 PM

I agree in large part. I think that Brown would have a case, but two factors come into play: (1) the public peception of the character as a take-off of Brown -- as noted in the earlier comment; and (2) whether the image is "transformative" as found in the Tiger Woods case. A few courts have adopted this standard as a way to balance the First Amendment with the commercial rights of the person in question.

What troubles me about the Eighth Circuit's ruling in MLBAM is that the court did not set any contours or tests regarding the balancing of the commercial and first amendment interests.

The issue can get only more confusing, not less, as more cases come up and the more dominant digital rights become. I presented a paper on the subject which proposes some solutions, which I will post in a day or two. Two ideas come to mind: (1) federalizing the standard; and (2) creating a compulsory license system.

Mark Conrad -- 8/03/2008 2:40 PM

Anon and Peter,

Jim Brown's case has little to do with statistics and much to do with the LIKENESS of the athlete. The 8th Circuits misguided decision in CBC essentially said that the use of statistics legitimized the use of the likeness. In this case, the crucial argument is the actual likeness or identity.

The fact that some or most of the video game players may not know or care who Jim Brown is is not a defense. This is about whehter the character can easily be identified by the likeness used in the game.
If you plagarize a lesser known author is that still not plagarism? or is it ok because most readers would not know that the passage used actually belonged to someone else?

It is time to get away from the mentality that athletes have no rights, and that they are simlpy greedy and angry. The courts in CBC and Tiger Woods both tipped their hands to this bias when they included language alluding to the fact that these athletes make plenty of money already. that is not, and should never be a factor in considering whether ones rights have been violated!

Jimmy H -- 8/03/2008 3:41 PM

Do you guys honestly question whether the identity element is met in Jim Brown's case. EA calls it "Real Old School Teams and Players," and this character plays on the "All Brown's Team". Who else could they possibly be referring to? If the character in the game is just any generic player, it completely makes the game's title meaningless. The young adults, college students and even young kids playing the game all know who Jim Brown is. But I suppose one could also argue that the character who is #15 and 6'3", 230 pounds, and plays QB for the Gators is not necessarily Tim Tebow either.

Mark, I don't really agree with the way you describe the Tiger Woods case as involving a transformative use issue. The court was persuaded that First Amendment considerations were especially compelling because it involved a painting of Tiger Woods, which carries substantial expressive and creative content.

Jimmy, it's amazing isn't it? People will make all sorts of arguments and see what sticks: it's all about stats, athletes make enough money as it is, the internet has changed things, their names are in newspapers so what's the big deal, a picture is not being used, giving the players licensing rights would create an illegal monopoly, and now according to anon, Jim Brown is an angry man. One of my colleagues flat out told me the other day, "I just don't believe in the right of publicity and don't even think it should be a recognized property right." The funny thing is, while I obviously disagree with what he said, I can respect it.

Rick Karcher -- 8/03/2008 5:28 PM

Mark,

I should clarify what I meant in my brief response to your comment that a factor that comes into play is whether the Jim Brown image used in a video game is transformative as found in the Tiger Woods case. I think we are really losing sight of what constitutes legitimate First Amendment protection in a right of publicity context.

The Tiger Woods case involved an artist who painted Tiger Woods at the Masters of Augusta and sold reprints of it. The painting has obvious expressive components, it tells a story, and it reveals an artist's message. But clearly not all drawings and paintings contain those First Amendment components, as the Calif. Sup. Ct. correctly noted in Comedy III when it upheld a right of publicity claim involving an artist's drawing of the three stooges reprinted on t-shirts. In that case, the court even cited the Tiger Woods case and noted that the Three Stooges drawing lacks the "expressive" components in the painting of Tiger Woods at the Masters because there's no story or message, or social commentary, involved. To put it simply, purchasers of the t-shirt are buying it primarily because they like the three stooges -- it's because of the three stooges (not because of the artist's expression) that the t-shirt is selling.

So in this context, to me, an artist's painting of Tiger Woods is so far removed from a commercial entity that uses a computer image of a player in a game (it's more like the Vanna White case involving robots that looked like her). So I guess I question in the first instance why a transformative use test would even apply in the video game context. Are EA and Sony similarly situated with an artist from a First Amendment standpoint? And this is the same problem I have with fantasy leagues -- are these commercial entities using players' identities primarily to express themselves in a First Amendment context? It's no different than trading card use from a First Amendment standpoint, and the court in Haelan Labs. didn't even address the First Amendment!

Rick Karcher -- 8/04/2008 7:09 AM

The video game companies have been paying the MLBPA, the NFLPA and the rest of them to license out those player likenesses since the beginning of annual games with accurate rosters. Whenever there's been a player outside the union (Barry Bonds, Michael Jordan), they've had to get creative - while MJ had life as "Roster Player" for a while, EA's solution in their MVP Baseball series was a player with Bonds' statistics and attributes in the body of a skinny white guy named Jon Dowd. They continued to use the same fake name for several years, creating almost an in-joke with fans of the series.

In the case of the All Time teams, there isn't (that I'm aware of) a retired players' union with whom to negotiate a rights license. Jim Brown's situation is more like Tim Tebow's than Barry Bonds'. EA's not about to make a game with 47 Jon Dowd's on a team, because they heavily market graphics and realism - all of this points to, yes, the likeness is what's important here.

This would be a nice secondary case for an NFL Retired Players' Union to take up, with the pension issue of course taking main stage. But with big issues like pensions and relatively little issues like video games on the table, why is a real centralized voice for retired players yet to materialize?

BlueDevilBrad -- 8/04/2008 2:13 PM

EA Sports has never attempted to be too subtle. On the college side the players match in number, physical description and ratings the players they are intended to depict. You can even add the players name to the database. And once you type in "Tim Tebow" to replace generic Florida QB #15, the announcers--at least in the prior versions--suddenly start calling him by name in the play by play.

Anonymous -- 8/04/2008 2:19 PM

In Germany, where the courts admit the concept of absoluter person der Zeitgeschichte (similar to the public figure concept), EA Sports was found guilty for the unauthorized use of the image of the famous goalkeeper Oliver Kahn in his game FIFA 2002 (awarded damages where aprox. Euro 125.000). The case is “Kahn, Oliver vs. EA Electronics Arts” (324. O 381/02 Landgericht Hamburg 25.04.2003).
It is important to highlight that in the game, the player was named by his real name. The other part of the claim, rejected by the courts, was regarding the commercials for the game in Germany. The TV adds, depicted a goalkeeper with similar physical characteristics than Kahn, but without his name, so the court understand that this was not enough for an image misappropriation. Thus, after the decision, the goalkeeper (with similar physical characteristics) is called Oliver Kröhmer.
I agree with Rick and also believe that the likeness in an essential part of the game, as with trading cards. Therefore, video games companies are not (in principle) similarly situated with an artist from a First Amendment standpoint. It is remarkable how hard those companies protect their own IP rights and, on the other side, how easy they contest the notion of image rights, in order to violate the player’s rights

Ariel Reck -- 8/04/2008 3:35 PM

I have seen neither the game nor image in question, but I am unconvinced by the article's description that this character is based on Jim Brown.
1) Jersey #s are of limited range for positions. #32 is very common for RBs: Franco Harris, OJ Simpson, Marcus Allen and many others had that number. If they picked #34, do they necessarily mean Greg Pruitt? Do they have to avoid all retired numbers?
2) Muscles are also common for football players.
3) This old time team deals with multiple season. I do not see any claims that the team is from any particular season that Jim played.

What is the jersey number for the QB on the All Browns team? Bet we can find a corresponding real life Browns QB to match the # from the last 60+ years.
If there are a high percentage of players on the old teams that can be identified, Jim has a case, but I have not heard another alleged.

SkeptiSys -- 8/04/2008 4:58 PM

Except when #19 is the QB for the Colts, and #12 is the QB for the Jets and Steelers, and #34 is the Bears RB, and #51 is the Bears MLB, etc. it certainly goes well beyond random chance.

Anonymous -- 8/04/2008 5:05 PM

1) Jersey #s are of limited range for positions. #32 is very common for RBs: Franco Harris, OJ Simpson, Marcus Allen and many others had that number. If they picked #34, do they necessarily mean Greg Pruitt? Do they have to avoid all retired numbers?
2) Muscles are also common for football players.
3) This old time team deals with multiple season. I do not see any claims that the team is from any particular season that Jim played.

lets get a few things clear here... we are talking about the All Browns Team... just from the details described by Rick in the original post, most of us know exactly who the player in the game is supposed to be.

and if that is not enough..

Jim Brown was the Browns first round pick in 1957. He was the rookie of the year 1957. He was the NFLs leading rusher for eight out his nine years in the league. He played in nine straight Pro Bowls. He was the NFL MVP three year. he was incducted into the profootball hall of fame in 1971.

To think that the running back on the all browns team could be anyone but Jim Brown is an absoulte joke. Not even Johnnie Cochran could make that statement with a straight face!

And to close, Ariel made the statement of the day!
It is remarkable how hard those companies protect their own IP rights and, on the other side, how easy they contest the notion of image rights, in order to violate the player’s rights
So true!

Jimmy H -- 8/04/2008 7:49 PM

This lawsuit also raises the question whether video game companies have the right to continue to commercially exploit the identities of amateur athletes without their authorization.

Indeed, the first thing that came to my mind after the first couple of paragraphs was that this could spell doom for EA Sports's college football and basketball games, where pretty much everyone is identified this same way.

Joshua -- 8/05/2008 6:05 PM

I agree with the point whether the image is "transformative" could be an additional issue as Kirby v. Sega case.

Regarding recent 8th court's ruling(CBC case), in Korea there has been a similar case where mobile game company used pro baseball player's name, performance record without permission in its mobile baseball game. The Korean court found the company infringed baseball player's right of publicity.

chungwi -- 8/06/2008 8:48 AM

"To think that the running back on the all browns team could be anyone but Jim Brown is an absoulte (sic) joke."

Does this mean that EA can't have a running back on the All Browns team at all? Because, inherently, the public would assume that any running back on the All Browns team is Jim Brown?

sportslaw_nut -- 12/09/2008 10:56 AM

very nice

halk bilimi -- 1/28/2009 11:38 AM

I don't think it will be a question of how many players recognize him, or if the "reasonable player" would recognize him. I think the issue will be if he can be recognized, which I believe he can. It will be determined by the court if that is an issue. I agree it needs to be decided once and for all, if that can be done!

Anonymous -- 6/02/2009 10:45 PM