Sam Keller sues the NCAA

[sd'sker]

If all that matters is whether their picture is being used, or their name, than the term we use to discuss it shouldn't be "likeness." A "likeness" refers to a resemblance, something that's very much like the real thing, but not actually it. That IS what EA Sports is using.

And legally, what you are suggesting, has zero grounds. It wouldn't hold up in the court of law, at all. In issues of copyright, a few small differences are all that matter.

that is absolutely not true. they are misappropriating their image and likeness, it is a defamation issue. and the general public knows who they are referencing.

 

[Saunders]

If all that matters is whether their picture is being used, or their name, than the term we use to discuss it shouldn't be "likeness." A "likeness" refers to a resemblance, something that's very much like the real thing, but not actually it. That IS what EA Sports is using.

And legally, what you are suggesting, has zero grounds. It wouldn't hold up in the court of law, at all. In issues of copyright, a few small differences are all that matter.

that is absolutely not true. they are misappropriating their image and likeness, it is a defamation issue. and the general public knows who they are referencing.

It absolutely is true. I work in marketing as a graphic designer and I also do quite a bit of video work. Needless to say, I deal with these type of issues on a weekly basis. This is not "defamation" issue here, at all. If you were to present a lineup of the digital player models next to a group of the represented players, and have a group of people try to match who is who, I would bet none get it right. Why? Because the faces are never close to the real thing.

If you want to talk real exploitation though, let's talk about the TV networks.

 

[sd'sker]

If all that matters is whether their picture is being used, or their name, than the term we use to discuss it shouldn't be "likeness." A "likeness" refers to a resemblance, something that's very much like the real thing, but not actually it. That IS what EA Sports is using.

And legally, what you are suggesting, has zero grounds. It wouldn't hold up in the court of law, at all. In issues of copyright, a few small differences are all that matter.

that is absolutely not true. they are misappropriating their image and likeness, it is a defamation issue. and the general public knows who they are referencing.

It absolutely is true. I work in marketing as a graphic designer and I also do quite a bit of video work. Needless to say, I deal with these type of issues on a weekly basis. This is not "defamation" issue here, at all. If you were to present a lineup of the digital player models next to a group of the represented players, and have a group of people try to match who is who, I would be none get it right. Why? Because the faces are never close.

If you want to talk real exploitation though, let's talk about the TV networks.

but their numbers, positions, and other representative factors are quite similar. defamation is a broad tort, involving misappropriation.

here is a little outline of misappropriation:

MISAPPROPRIATION FOR COMMERCIAL BENEFIT

• APPROPRIATING

• THE NAME OR LIKENESS OF PLAINTIFF

• P must demonstrate that there is a unique quality or value in his likeness that if appropriated, would result in commercial profit to the defendant.

• FOR DEFENDANT’S OWN USE OR BENEFIT

• WITHOUT PERMISSION

• CAUSING INJURY (P could benefit from this, but D has taken the opportunity away from him)

Defenses to misappropriation

• no injury

• consent

• P already completely publicized his own name and pictures

• legitimate public interest (a/k/a newsworthy privilege)

 

[Vizsla1]

I do not think players should be paid. It is a slippery sloop on how much should they be able to earn- do you factor in the cost of living in a particular city, state, etc... the other issue is- let's say they decide to pay them X number of dollars per week, then some other school (texas) decides for competitive reasons, to pay them X plus Y (because we have collectively already deemed payments to collegiate athletes to be ok) then you have a mess of National debt proportions. Even simpler historic terms, each of the casinos over in Iowa, including the Indian ones, all started out as places to play small money slots.. They each had a punch card where you had to show your id so you could only lose 100 to 200 dollars- now you can go gamble the church fund and the college fund all in the same night. The cozy controls those casino recommended initially to make everyone feel safe and warm are gone in the name of profit and competitiveness. I would believe college pay for play would turn into the same thing. It would become a nuclear arms race, that only the rich schools will be able to afford. As for EA- Keller is a desperate, unemployed ex-jock. Crap, what kid wouldn't want to play the game and have an avatar that may/not represent him? Last I checked, 99 percent of the audience doesn't buy Madden for the cover or buy Playboy for the articles.

 

[Saunders]

If all that matters is whether their picture is being used, or their name, than the term we use to discuss it shouldn't be "likeness." A "likeness" refers to a resemblance, something that's very much like the real thing, but not actually it. That IS what EA Sports is using.

And legally, what you are suggesting, has zero grounds. It wouldn't hold up in the court of law, at all. In issues of copyright, a few small differences are all that matter.

that is absolutely not true. they are misappropriating their image and likeness, it is a defamation issue. and the general public knows who they are referencing.

It absolutely is true. I work in marketing as a graphic designer and I also do quite a bit of video work. Needless to say, I deal with these type of issues on a weekly basis. This is not "defamation" issue here, at all. If you were to present a lineup of the digital player models next to a group of the represented players, and have a group of people try to match who is who, I would be none get it right. Why? Because the faces are never close.

If you want to talk real exploitation though, let's talk about the TV networks.

but their numbers, positions, and other representative factors are quite similar. defamation is a broad tort, involving misappropriation.

here is a little outline of misappropriation:

MISAPPROPRIATION FOR COMMERCIAL BENEFIT

• APPROPRIATING

• THE NAME OR LIKENESS OF PLAINTIFF

• P must demonstrate that there is a unique quality or value in his likeness that if appropriated, would result in commercial profit to the defendant.

• FOR DEFENDANT’S OWN USE OR BENEFIT

• WITHOUT PERMISSION

• CAUSING INJURY (P could benefit from this, but D has taken the opportunity away from him)

Defenses to misappropriation

• no injury

• consent

• P already completely publicized his own name and pictures

• legitimate public interest (a/k/a newsworthy privilege)

There's your key word. A face is all that matters, period. It's the same reason why I can take a picture of people walking down the street to use in an advertisement, and as long as I don't show their faces, I owe them nothing. It's simply the way it is.

Again, I ask. If the games were to stop being made, in order to prevent EA from making money off of a digital "likeness" of the players, would you also be ok with not watching College Football on TV?

 

[Matt634]

There's your key word. A face is all that matters, period. It's the same reason why I can take a picture of people walking down the street to use in an advertisement, and as long as I don't show their faces, I owe them nothing. It's simply the way it is.

This is only true for misappropriation. Unfortunately for EA, and you if you ever happen to take the wrong person's picture, there are other causes of action that DO NOT require a face. Most applicable here are the Right of Publicity and the Lanham Act. All three causes of action are explained and distinguished in the case of White v Samsung Electronics America, where an advertisement used a robotic Vanna White without her permission. Anyone interested should read it. I especially like this bit of reasoning offered by Judge Goodwin:

"Consider a hypothetical advertisement which depicts a mechanical robot with male features, an African-American complexion, and a bald head. The robot is wearing black hightop Air Jordan basketball sneakers, and a red basketball uniform with black trim, baggy shorts, and the number 23 (though not revealing "Bulls" or "Jordan" lettering). The ad depicts the robot dunking a basketball one-handed, stiff-armed, legs extended like open scissors, and tongue hanging out. Now envision that this ad is run on television during professional basketball games. Considered individually, the robot’s physical attributes, its dress, and its stance tell us little. Taken together, they lead to the only conclusion that any sports viewer who has registered a discernible pulse in the past five years would reach: the ad is about Michael Jordan."

 

[Saunders]

There's your key word. A face is all that matters, period. It's the same reason why I can take a picture of people walking down the street to use in an advertisement, and as long as I don't show their faces, I owe them nothing. It's simply the way it is.

This is only true for misappropriation. Unfortunately for EA, and you if you ever happen to take the wrong person's picture, there are other causes of action that DO NOT require a face. Most applicable here are the Right of Publicity and the Lanham Act. All three causes of action are explained and distinguished in the case of White v Samsung Electronics America, where an advertisement used a robotic Vanna White without her permission. Anyone interested should read it. I especially like this bit of reasoning offered by Judge Goodwin:

"Consider a hypothetical advertisement which depicts a mechanical robot with male features, an African-American complexion, and a bald head. The robot is wearing black hightop Air Jordan basketball sneakers, and a red basketball uniform with black trim, baggy shorts, and the number 23 (though not revealing "Bulls" or "Jordan" lettering). The ad depicts the robot dunking a basketball one-handed, stiff-armed, legs extended like open scissors, and tongue hanging out. Now envision that this ad is run on television during professional basketball games. Considered individually, the robot’s physical attributes, its dress, and its stance tell us little. Taken together, they lead to the only conclusion that any sports viewer who has registered a discernible pulse in the past five years would reach: the ad is about Michael Jordan."

"The panel, however, does more than misinterpret California law: By refusing to recognize a parody exception to the right of publicity, the panel directly contradicts the federal Copyright Act. Samsung didn't merely parody Vanna White. It parodied Vanna White appearing in "Wheel of Fortune," a copyrighted television show, and parodies of copyrighted works are governed by federal copyright law.

Copyright law specifically gives the world at large the right to make "fair use" parodies, parodies that don't borrow too much of the original. Fisher v. Dees, 794 F.2d 432, 435 (9th Cir. 1986). Federal copyright law also gives the copyright owner the exclusive right to create (or license the creation of) derivative works, which include parodies that borrow too much to qualify as "fair use." SeeAcuff-Rose Music, Inc. v. Campbell, 972 F.2d 1429, 1434-35 (6th Cir. 1992). n24 When Mel Brooks, for instance, decided to parodyStar Wars, he  [*1518] had two options: He could have stuck with his fair use rights under 17 U.S.C. 107, or he could have gotten a license to make a derivative work [**20] under 17 U.S.C. 106(B) from the holder of the Star Wars copyright. To be safe, he probably did the latter, but once he did, he was guaranteed a perfect right to make his movie. n25

The majority's decision decimates this federal scheme. It's impossible to parody a movie or a TV show without at the same time "evoking" the "identities" of the actors. n26 You can't have a mock Star Wars without a mock Luke Skywalker, Han Solo and Princess Leia, which in turn means a mock Mark Hamill, Harrison Ford and [**21] Carrie Fisher. You can't have a mock Batmancommercial without a mock Batman, which means someone emulating the mannerisms of Adam West or Michael Keaton. See Carlos V. Lozano, West Loses Lawsuit over Batman TV Commercial, L.A. Times, Jan. 18, 1990, at B3 (describing Adam West's right of publicity lawsuit over a commercial produced under license from DC Comics, owner of the Batman copyright). n27 The public's right to make a fair use parody and the copyright owner's right to license a derivative work are useless if the parodist is held hostage by every actor whose "identity" he might need to "appropriate.""

Link

tl;dr : You example was severely criticized because there were numerous instances of similar things happening over and over. It was a cash grab, and the panel didn't know the laws.

 

[sd'sker]

If all that matters is whether their picture is being used, or their name, than the term we use to discuss it shouldn't be "likeness." A "likeness" refers to a resemblance, something that's very much like the real thing, but not actually it. That IS what EA Sports is using.

And legally, what you are suggesting, has zero grounds. It wouldn't hold up in the court of law, at all. In issues of copyright, a few small differences are all that matter.

that is absolutely not true. they are misappropriating their image and likeness, it is a defamation issue. and the general public knows who they are referencing.

It absolutely is true. I work in marketing as a graphic designer and I also do quite a bit of video work. Needless to say, I deal with these type of issues on a weekly basis. This is not "defamation" issue here, at all. If you were to present a lineup of the digital player models next to a group of the represented players, and have a group of people try to match who is who, I would be none get it right. Why? Because the faces are never close.

If you want to talk real exploitation though, let's talk about the TV networks.

but their numbers, positions, and other representative factors are quite similar. defamation is a broad tort, involving misappropriation.

here is a little outline of misappropriation:

MISAPPROPRIATION FOR COMMERCIAL BENEFIT

• APPROPRIATING

• THE NAME OR LIKENESS OF PLAINTIFF

• P must demonstrate that there is a unique quality or value in his likeness that if appropriated, would result in commercial profit to the defendant.

• FOR DEFENDANT’S OWN USE OR BENEFIT

• WITHOUT PERMISSION

• CAUSING INJURY (P could benefit from this, but D has taken the opportunity away from him)

Defenses to misappropriation

• no injury

• consent

• P already completely publicized his own name and pictures

• legitimate public interest (a/k/a newsworthy privilege)

There's your key word. A face is all that matters, period. It's the same reason why I can take a picture of people walking down the street to use in an advertisement, and as long as I don't show their faces, I owe them nothing. It's simply the way it is.

Again, I ask. If the games were to stop being made, in order to prevent EA from making money off of a digital "likeness" of the players, would you also be ok with not watching College Football on TV?

how do you get that the key word is 'face' when the definition involves name or likeness. with your example, the faceless people in advertisements, no one would know you are using their image, it is too generic.

as for your second example, i do think students should be compensated for televised games, but they do benefit more from that because the school is paid, which in return funds scholarships and the athletic department. the nexus (shout-out) between student athletes and ea sports is much weaker.

vanna white ran into this problem in 1993, when "White won a lawsuit against the Samsung Electronics corporation over its use of a humorous ad featuring a robot turning letters on a game show. The decision was later affirmed by the United States Court of Appeals for the Ninth Circuit. The court ruled in favor of White's claim of personality rights."

the case

 

[Matt634]

You example was severely criticized because there were numerous instances of similar things happening over and over. It was a cash grab, and the panel didn't know the laws.

Wow, are you really that interested in arguing just for the sake of argument that you're going to cite a DISSENT that has almost no legal significance? Just because you and the dissent think "the panel didn't know the laws," IT IS THE LAW. Your legal opinion carries the same weight as the dissent's. Zero.

Regardless, I didn't reference the Vanna White case for its holding. I referenced the case because it identifies and distinguishes different causes of action including the Lanham Act and the Right of Publicity, so anyone interested in this issue could learn about it. Then, you go and try to crap on what I said with a dissent and quote a piece of it regarding the "parody" exception to copyright which has NO SIGNIFICANCE to the current facts at issue. Do you really think EA is trying to parody Sam Keller, or are you just trying to be argumentative? I'm trying to add something constructive to a conversation I actually know something about. You can take it for what it's worth, but please don't diminish it with irrelevant, argumentative replies.

 

[sd'sker]

You example was severely criticized because there were numerous instances of similar things happening over and over. It was a cash grab, and the panel didn't know the laws.

Wow, are you really that interested in arguing just for the sake of argument that you're going to cite a DISSENT that has almost no legal significance? Just because you and the dissent think "the panel didn't know the laws," IT IS THE LAW. Your legal opinion carries the same weight as the dissent's. Zero.

Regardless, I didn't reference the Vanna White case for its holding. I referenced the case because it identifies and distinguishes different causes of action including the Lanham Act and the Right of Publicity, so anyone interested in this issue could learn about it. Then, you go and try to crap on what I said with a dissent and quote a piece of it regarding the "parody" exception to copyright which has NO SIGNIFICANCE to the current facts at issue. Do you really think EA is trying to parody Sam Keller, or are you just trying to be argumentative? I'm trying to add something constructive to a conversation I actually know something about. You can take it for what it's worth, but please don't diminish it with irrelevant, argumentative replies.

whoa, that is crazy, i referenced the vanna white case after you without reading your post. that is crazy, and i should read the posts above mine. plus, the vanna white case was clearly a parody and they put the kibosh. ea sports is not even close to parody.

 

[Matt634]

You example was severely criticized because there were numerous instances of similar things happening over and over. It was a cash grab, and the panel didn't know the laws.

Wow, are you really that interested in arguing just for the sake of argument that you're going to cite a DISSENT that has almost no legal significance? Just because you and the dissent think "the panel didn't know the laws," IT IS THE LAW. Your legal opinion carries the same weight as the dissent's. Zero.

Regardless, I didn't reference the Vanna White case for its holding. I referenced the case because it identifies and distinguishes different causes of action including the Lanham Act and the Right of Publicity, so anyone interested in this issue could learn about it. Then, you go and try to crap on what I said with a dissent and quote a piece of it regarding the "parody" exception to copyright which has NO SIGNIFICANCE to the current facts at issue. Do you really think EA is trying to parody Sam Keller, or are you just trying to be argumentative? I'm trying to add something constructive to a conversation I actually know something about. You can take it for what it's worth, but please don't diminish it with irrelevant, argumentative replies.

whoa, that is crazy, i referenced the vanna white case after you without reading your post. that is crazy, and i should read the posts above mine.

No worries, it's pretty much "The Case" when it comes to these issues, so it's natural to be thinking/talking about it.

 

[knapplc]

And I completely agree. I'm not arguing for or against whether the players get money, at all. What I'm arguing against is the knee jerk reaction people make in regards to this issue.

Reaction: "ZOMG, EA IS PROFITING FROM THE PLAYERS IMAGES!!!!!"

My Response: "So what? It pales in comparison to the billions and billions made by the TV networks. If you're going to go after EA, then you have to go after ABC/ESPN/FSN, because they're making waaaaaaaay more money. They're also using actual photo and video footage of players, not generic digital representations."

Nobody seems to think that part through.

Luckily for this conversation, my reaction is not knee-jerk. It is a well-reasoned, dispassionate conclusion that a gaming company has less right to profit off the hard work of these players than these players do. And I have long held the belief that these guys are getting screwed, and not just by the games people.

So you have no problem with going after EA and the TV networks then, correct? Because that's the whole point. To say one is bad, and the other is ok (which is quite often what people say) is severely hypocritical.

And I do think that the players deserve a stipend, but figuring out how much is a whole different issue.

I'm not really sure how I can be more clear than that. But of course you're exaggerating this a bit, too. There doesn't have to be any "going after" anyone. Just compensate the players commensurate with the profit made by their labor and we're good. It's a pretty simple request.

 

[knapplc]

The situation here is pretty simple, to me. The players are at the base of the inverted pyramid. Without the players there is no EA sports, no video games, no NCAA, no ESPN, no network football shows, no DB personalities wearing stupid hats on game days. The players are the keystone of the arch, yet they are the least compensated for what they do.

 

[Saunders]

The situation here is pretty simple, to me. The players are at the base of the inverted pyramid. Without the players there is no EA sports, no video games, no NCAA, no ESPN, no network football shows, no DB personalities wearing stupid hats on game days. The players are the keystone of the arch, yet they are the least compensated for what they do.

Lol.... you just described corporate America.

 

[Saunders]

as for your second example, i do think students should be compensated for televised games, but they do benefit more from that because the school is paid, which in return funds scholarships and the athletic department. the nexus (shout-out) between student athletes and ea sports is much weaker.

Uh, you do realize the schools receive money from EA, right? The difference is that because the revenue generated from the games pales in comparison to TV contracts, the amount disseminated to the universities is negligible.