Last week the plaintiffs in the landmark O'Bannon trial called an Electronic Arts Sports executive, Joel Linzner, to testify about EA's now-discontinued NCAA football- and basketball-themed video games. Linzner testified that EA stopped making the games due to all the litigation associated with them. But he reportedly said that if there was an "efficient" way to procure permission from players to use their names and likenesses, EA would be interested in reviving those games.
By "efficient," Linzner likely meant something analogous to the way the company deals with professional athletes for games like Madden NFL. Since athletes in major professional sports are organized in players' unions, EA and other video game companies negotiate agreements with those unions for a single "group license" covering all current professional athletes in a given sport.
Whether a similar group licensing mechanism for NCAA-themed video games may ultimately emerge from the O'Bannon case is still unknown. But even if it might, Linzner's point illustrates why the O'Bannon litigation has produced some very bad law when it comes to the relationship between video games and the First Amendment.
Last year two federal courts of appeals ruled in the Keller and Hart cases that EA's NCAA games were not protected by the First Amendment because they did not "transform" the athletes' physical likenesses in any meaningful way. Essentially, the courts held that the games' realistic graphics were their legal downfall.
It is easy to sympathize with amateur athletes who risk life-long injuries while a private corporation like EA earns hundreds of millions in revenues using their likenesses. But the same could be said about a movie studio or documentary company when it makes a highly profitable film about college athletes without paying them, which few dispute they have a right to do. The conclusion that any form of speech, including video games, is entitled to constitutional protection only if it fictionalizes reality is antithetical to basic First Amendment principles, for both practical and policy reasons.
EA's NCAA-themed video games are just one example of simulation games, a genre that is not limited to sports and whose essence is to try to simulate real people and events as realistically as possible. For example, there are video games in which players simulate past American military campaigns replete with real historical figures, both friend and foe. And there are video games that simulate presidential elections, allowing players to simulate or run against the actual candidates who competed.
Yet if the logic of Keller and Hart were applied to those games – and it is difficult to rationally distinguish them – their creators would have to get permission from (and potentially compensate) every former presidential candidate or military commander. Given that politicians are not members of collective bargaining units, there would surely be no "efficient" way of doing that. So just as EA exited the market for its NCAA games, the decisions raise serious questions about the practical viability of simulation games of any form.
Moreover, if every person depicted in an electronic simulation game has a "right of publicity" to control the use of his or her name and likenesses, that effectively allows every participant in a historical event to censor how video games depict history. For example, Mitt Romney could agree to be included in an election-simulation game only if the game depicts him as better-financed than he really was, or Michael Dukakis could require that he be a more adept debater. Or either could refuse to participate at all, thus making it impossible to accurately simulate those election cycles. The First Amendment should no more tolerate giving individuals the power to control the depiction of history in video games than it does for any other genre of media.
None of these considerations were meaningfully raised or considered in the Keller and Hart decisions. But there are indications they may be in play in litigation that is still pending over EA's pre-2010 Madden NFL games. Those games included the option to play with "classic" teams from bygone eras, as discussed in this blog a few weeks ago.
Unlike for current NFL players, there is no mandatory union for retired NFL players (let alone the heirs of deceased players, who could claim similar rights), so it less clear that any "efficient" way of securing group permission could be created. As a result, the ability of any single disgruntled former player to interfere with the content of such games would be enhanced. So the First Amendment concerns raised by Keller and Hart may be more apparent than they are in games involving recent college graduates.
EA is also raising these issues as part of its defense to these cases, which it did not do in the NCAA litigation. The principal defense it now raises is the common-law doctrine of "incidental use," which says there comes a point where any specific person's name or likeness is not a sufficiently meaningful focus of a work to warrant legal protection. These games, EA argues, contain likenesses of thousands of athletes who are included solely to accurately reflect the historical reality of their teams, rather than to exploit any particular individual.
Two years ago, the U.S. Supreme Court struck down a California law that regulated the sale of violent video games to minors. It recognized that video games now occupy their own niche in the development of entertainment media, and reasoned that they deserve the same First Amendment protections as more traditional forms of media. The decisions in the EA lawsuits to date are difficult to reconcile with that principle, which if applied to other media would essentially eviscerate the right to create realistic nonfiction.
Moreover, a few years ago a federal court of appeals ruled that the First Amendment protects the use of names and images in fantasy baseball games, so no agreement with the MLB Players' Association is necessary to offer them. It may take years, but eventually the Supreme Court is likely to take up these questions, and the results may prove surprising to many who assume the legal dispute over the status of sports-themed video games has been settled.
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