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Monday, March 17, 2008
What Happens When a Video Game Gets a Player's Race Wrong?

Sports Law Blog reader Scott Timmerick checks in with an interesting question (between the asterisks):

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I just started playing MLB 2K8 on PlayStation 2. Facing off against the great Tampa Bay Rays and their ace Scott Kazmir, seven innings later I found myself taking pitches from Gary Glover, a (understandably) unknown relief pitcher whose 5.00 career ERA has earned him the rights to be a major league journeyman.

Anyway, since I spent some time as part of the Rays' organization, I know Gary Glover. Which is why I was surprised to find that, in MLB 2K8, he is a black man...when in real life, he is indeed quite white.

My question then, is this: Could Mr. Glover sue 2KSports for misrepresentation of any sort? Putting aside the sheer absurdity of such a lawsuit, is there any kind of precdent for this sort of thing (wrongful use of image in a video game), and would Gary have any argument?

Many thanks for your time,
Scott Timmreck

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I am unaware of litigation arising from this type of issue, and I suspect Glover would not succeed in a defamation suit, for multiple reasons, including that he probably isn't harmed by the game's mistake, which was undoubtedly innocent in nature (though a reflection of not very good game development).

Also, it's possible that Glover and other big league players may have contractually waived away any right to bring such a claim in the deal between 2K Sports and both Major League Baseball and the Major League Baseball Players' Association, which together licensed the players and their respective images to 2K Sports. In fact, 2K Sports has an exclusive deal with baseball to make official Major League Baseball games, though that exclusivity does not apply to first-party publishers, such as games published by Microsoft for the X-Box 360, by Sony for the Playstations 2 and 3, and by Nintendo for the Wii. But that deal does mean that 2K Sports has no competition from Electronic Arts, arguably the most prominent third-party publisher of sports video games and which, until 2K's deal, had published a very popular baseball game called MVP Baseball.

Especially considering the lukewarm reviews for MLB 2K8, perhaps baseball should think twice about exclusive deals, particularly when a company like Microsoft does not offer its own baseball game for the X-Box 360 (unlike Sony, which offers the hit MLB: The Show for both the PS2 and PS3). Of course, baseball isn't alone in negotiating an exclusive third-party publisher deal, as the NFL and NFLPA have one with Electronic Arts, publisher of John Madden Football, NFL Tour, and NFL Head Coach. That deal with EA, however, knocked off the gaming market 2K's popular football game ESPN NFL 2K.

In fact, one might say that the comparative advantages for 2K Sports and Electronics Arts have been voided by these exclusive deals: 2K Sports can't make its excellent football game and Electronic Arts can't make its excellent baseball game, while both have exclusive rights to publish games--2K Sports with MLB 2K and EA with Madden--that some would consider inferior to those that had been published by each other prior to the exclusive third-party publisher deals.

I suppose what goes around comes around with exclusive third-party publisher deals, though probably never in the consumer's best interests.


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!

Anonymous 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.

Blogger 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.

Anonymous Michael Risch -- 3/22/2008 1:14 PM  


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.

Blogger Rick Karcher -- 3/24/2008 11:15 AM  

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