Tuesday, October 04, 2016

NCAA Ruling Updated - Right to Publicity Debate Continues

The NCAA case is still rolling, now with the 9th court circuit of appeals overturning portions of the last ruling - thus leaving college-based sports video games in perpetual limbo. In the initial judgement, EA and the NCAA were required to pay out athletes in the case for using their likeness and marketing video games without properly compensating them. The max to be paid out to each person was $5,000, and up to $15,000 for the main plaintiffs in the case. The result ended with NCAA breaking their contract with EA and no more college-based video games have been produced since. In the appeals case that followed, the court ruled that the initial judgment of antitrust must stand, but removed the penalty from the NCAA. EA Games settled outside of court so they could be removed from the cast. The NCAA no longer has to pay, and will probably try to collect from the people they have paid out already.

It's an ongoing battle to determine right of likeness in media. By using a figure that looks like you, are you entitled to compensation? The right to publicity or character likeness is the talk déjour. Historical figures are typically considered exempt if they do something that changes the world beyond their collective group of family and friends. U.S. Presidents, dictators, Julius Caesar: living or dead these people would qualify in that exemption so long as the content being produced by the media is in line to historical accuracy. If President Obama is in a movie about Seal Team 7 and they are recreating the events as they happen, he wouldn't be entitled to compensation. But if he ends up on the moon and becomes the key figure to stopping an alien invasion, then Hollywood better pony up some money to use his image.

For the rest of the world, our image is our livelihood. People respond to us based on our appearance, our actions, and our verbal cues. If a game company were to take that image of ourselves and place it into a game, that is a violation of our rights to compensation. I'm not saying that we should go through every game and try to point out the billions of NPC's that may or may not look like us. With 6 billion people in the world, there's going to be an NPC or two that will share a digital image of us. But in something like NCAA games where EA was clearly using the players height, weight, skin tones, hairstyle, and jersey numbers, it's obvious that they were trying to showcase real people without having to pay for them. That's the difference.

We'll see where this case turns next. Until then, don't expect NCAA or college games to return anytime soon.


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