LGJ: Mo' Madden madness

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

New developments in the Madden franchise's ongoing legal troubles have provided a unique opportunity to talk about the so-called "right of publicity" that has become an issue with retired NFL players. As reported by GamePolitics, there are allegedly documents showing that EA altered aspects of Madden to keep from having to pay the NFL Player's Association (NFLPA), which kept the NFLPA from having to pay all of the former NFL players that appear in the game. The lawsuit is by the players toward the NFLPA to recover royalties for the use of their likenesses. The idea that EA would have to pay the NFLPA and the NFLPA would have to pay the players for the use of retired players likenesses rests in the "right of publicity."

The right of publicity is rooted in the concept of privacy, and has evolved in part from the ideas of libel, slander, and "passing off," which is often associated with a trademark-like protection. The basic concept is that you alone have the right to profit from the use of your likeness, which may include your name, physical appearance, voice, personality or other defining characteristics. So, if Nintendo wanted to make "Super Mark-io Brothers" with me as the main character, then they would have to pay me royalties. But it gets a lot deeper than that.

Before we get into too many details, I want to point out that the causes of action (more commonly referred to as potential lawsuits) that fall under the "right of publicity" umbrella are all state-level actions. What that means in the US is that there's no common law from state to state, so I'll be speaking generally with some occasional examples from specific jurisdictions.

So, when someone's likeness is used, a royalty has to be paid. This is pretty obvious in situations like the Madden franchise, where Mr. Madden himself is paid for the use of his name, likeness, and voice. However, the right to publicity can extend well past the obvious. In Midler v. Ford, Bette Midler sued when Ford used someone who sounded like her for music in a commercial. However, there are two cases which take things much further than that. Both cases are from California, and they're colloquially known as the "robot cases." Specifically, they are White v. Samsung and Wendt v. Host International.

In the White case, Samsung made an ad with a futuristic looking Wheel of Fortune like set where a robot was pointing at a letter tile on a wall. Vanna White sued successfully, with the decision holding that that shot alone was enough to reference Vanna White and her likeness. The Wendt case is about Host International looking to open a series of Cheers themed bars. In those bars, they wanted to have two animatronic characters on stools at the bar saying lines similar to those Cliff and Norm said on the show. The characters would not look like Cliff and Norm, nor would they be using actual lines from the show. However, the court felt that this was still enough to infringe on the rights of publicity for Wendt and Ratzenberger. These cases show that the line for what is allowable can be much further out than one would expect.

However, the right of publicity is not an absolute right. It can be preempted by other rights, primarily copyright and contractual agreement. For example, if I were a famous singer, but the copyright to all of my songs was owned by someone else, then I couldn't use the right of publicity to keep the copyright owner from using those songs in advertisements. Similarly, many of the professional sports leagues address the right of publicity in certain circumstances, allowing the league to use the athlete's likeness and removing the ability of the athlete to object.

So, based on all of this, what's the likely result in the Madden case? Well, I would think that if the alleged documents are real and authentic, then things don't look good for the NFLPA. However, if those documents aren't what they seem, then the retired players may not have much to stand on. Why? There are only so many ways to present players in a football game, and so if the players' likenesses and numbers aren't used in the specific positions, I'm not sure EA is profiting from the likenesses, which means that the NFLPA isn't entitled to a royalty. It's hard to tie the numeric values assigned to player abilities to specific players or their likenesses, so absent something identifiable like a face, voice, or number at a specific position for a specific year's team, I'm not sure there's an actual case. Some of this may still rest on specifics related to the contracts between the players and the NFLPA, but that's my opinion based on the facts available.

Of course, this could be a bigger issue as more and more "real people" make their way into gaming. It would be interesting to see the result of newer, recognizable online personas having their "publicity" used in a game without permission. For example, could the use of Leeroy Jenkins be protected under right of publicity? It's definitely something interesting to think about, and it may become a real issue in the not too distant future.

Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

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