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Gregory Gabriel

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Electronic Arts In Hot Water Again Over Publicity Rights

Posted: 07/19/10 12:46 PM ET

There has long been a debate regarding whether or not student athletes at the college level should receive financial compensation beyond their scholarships. Major universities make tens of millions of dollars from their athletic programs, but the athletes who generate all of that revenue get none of it. While there are numerous arguments on both sides of this debate - the merits of which I'll leave for others to dispute - there does not seem to be any reason why a third party should be permitted to profit off of the student athlete. That is exactly what numerous current and former student athletes contend Electronic Arts has been doing for years and they have filed a class action lawsuit in response.

Each year, Electronic Arts releases its popular NCAA Football video game. Pursuant to agreements with the NCAA, Electronic Arts obtains the right to use the names of all of the major college football programs in its game. NCAA regulations prohibit the student athletes from profiting from the exploitation of their names and likeness and the NCAA has no ability to license Electronic Arts these rights. However, that has not stopped Electronic Arts. Each team in Electronic Arts' game is populated with players that bear a striking resemblance to the actual players on the team. For example, if you chose to play Texas in last years version of the game, your quarterback would bear the same number as Colt McCoy. The virtual Texas quarterback would also share the same skin color, height, weight, throwing arm and even home state of Mr. McCoy. The only thing missing is "McCoy" on the back of the virtual jersey, but I for one believe that there really is no doubt that it is Colt McCoy being depicted in the game.

Electronic Arts' NCAA football game is potentially a problem because every one of us enjoys what is referred to in legal jargon as a right of publicity. This means that no one has the right to use your name, likeness or identity for commercial purposes without your permission. The right of publicity is a derivative of your overall right to privacy. In other words, because you have a constitutional right to privacy, you also have a right to not have your face plastered over billboards and on the side of buses. While fame is not a prerequisite to assert a claim for a violation of your right of publicity, the more famous you are, the more the use of your name or likeness is worth.

In order to establish that your right of publicity has been violated, it is not necessary that your exact image or likeness be used, but the public viewing the advertisement must be able to identify you. In a case that is remarkably similar, a cigarette manufacturer used an image of race car driver Lothar Motschenbacher in front of his race car in a commercial. Although Motschenbacher's face was not recognizable in the advertisement, the car bore virtually all of the same unique markings of Motschenbacher's car except for a change to the racing number and the addition of a spoiler. The court ruled that Motschenbacher could pursue his claim. In another famous case, Samsung used the image of a robot dressed in a wig, gown and jewelry that resembled Vanna White's style. The robot was positioned by a game board, which was recognizable as the Wheel of Fortune set. The court ruled that Vanna White could pursue her claim for a violation of her right of publicity. Bette Midler and Tom Waits even successfully pursued claims for a violation of their right of publicity based on the use of imitations of their voice in commercials.

Given the results in favor of Mr. Motschenbacher and Ms. White, it seems that the student athletes have a very strong case against Electronic Arts. There is no doubt that the public who is familiar with college football can readily identify the characters in the game as being virtual representations of their favorite players on the gridiron each Saturday. Of course, if the student athletes win a monetary recovery on top of injunctive relief, that could give rise to a whole new set of issues with the NCAA regarding its policy that the student athletes not profit from the exploitation of their likeness, but that's an article for another day.