R. Ben Sperry, Washington Legal Foundation Fellow & law student, George Mason University School of Law
Last week, video game maker EA Sports released the 2011 version of its highly popular NCAA Football game. The Washington Post used the occasion to report on a lawsuit filed by former Arizona State and Nebraska quarterback Sam Keller against EA Sports and the NCAA for using his likeness without his express permission. The suit has potentially significant implications for intellectual property and contracts in the digital age. Keller filed suit over a year ago, and the federal district court for the Northern District of California has already issued one ruling, in February 2010.
Mr. Keller sued EA Sports, the NCAA, and the Collegiate Licensing Company for violations of Indiana and California state laws protecting his “Right of Publicity.” He also included civil conspiracy and breach of contract claims. His complaint implicates such novel questions as:
- Should video game manufacturers be able to use the likenesses of college athletes for their economic benefit without the express consent of the players?
- Do the players consent to such uses of their likenesses when they decide to become NCAA athletes?
- Does the NCAA have a duty to protect the likenesses of players which they violate when they contract with licensers such as the Collegiate Licensing Company (CLC)?
- What impact will a ruling against EA Sports, et al. have on sports video games?
The District Court for the Northern District of California offered answers to some of these questions in Keller v. Electronic Arts, Inc., 2010 WL 530108 (Feb. 8, 2010). It denied EA Sports’ and CLC’s motions to dismiss and denied in part and granted in part the NCAA’s motions to dismiss, while granting the plaintiff leave to amend his “Right of Publicity” Claims and the Breach of Contract Claim.
The charges which most merit ongoing consideration are the “Right of Publicity” Claim against EA Sports and the breach of contract claim against the NCAA.
“Right of Publicity” Claim Against EA Sports. Under California law, a third-party may not use the likenesses of celebrities for monetary gain without consent, unless the third-party sufficiently transforms the likeness. In this case, EA Sports created digital avatars that are the same size and shape as the players, with similar facial and body features and with the same numbers and accessory choices. The digital avatars were also from the same home state as corresponding NCAA athletes. Thus, the fact that there were no names attached to the numbers did not allow EA Sports to make the claim that they had sufficiently transformed the likenesses of the athletes they portray.
EA Sports argued that the information contained in the game about the digital avatars simply reflected statistics about the players that were already in the public record, which should shield EA Sports from liability. Lawyers successfully advanced similar arguments in cases dealing with posters of pro athletes and fantasy college football. However, the court in Keller’s case rejected this argument, determining that “EA’s game provides more than just the players’ names and statistics; it offers a depiction of the student athletes’ physical characteristics and, as noted, enables consumers to control the virtual players on a simulated football field.”
Breach of Contract Claim Against the NCAA. Keller asserted that athletes sign an NCAA document stating “they have ‘read and understand’ the NCAA’s rules” and that “to the best of [their] knowledge [they] have not violated any amateurism rules.” And according to NCAA Bylaw 12.5, the NCAA may not commercially license any athlete’s “name, picture, or likeness.” Thus, Keller claimed the NCAA breached its contract when it licensed the likenesses of collegiate athletes who were then digitized in EA Sports’ videogames.
The NCAA moved for dismissal on this claim, because Keller did not identify an enforceable contract. Because Keller did not attach the signed agreement to his complaint, and did not provide enough information in his complaint to identify this agreement as an enforceable contract, the court dismissed this claim, with leave to amend.
There is no solid body of case-law applying state right to publicity laws in the context of video games or other devices which use digital avatars, so Keller’s case will certainly break new ground on those issues. This is of profound importance to the highly lucrative video game industry and also to the millions of consumers who play the games. The lawsuit will provide an interesting test of the contracts collegiate athletes sign and how they will be interpreted to protect intangible, but profoundly personal, property rights.