Video Games & Free Speech

Courtesy of EA

Can a video game portray a character that looks like you, without your permission? There have been a number of disputes over the right of video-game publishers to use a person’s likeness – for example, the dispute over Kurt Cobain’s avatar in Guitar Hero 5, or the recent lawsuit over whether the images of certain professional boxers can be used in a video game. 

In a recent US case (Brown v. Electronic Arts Inc., Case No. 2:09-cv-01598 (US District Court, Central Cal.)), retired football player Jim Brown sued Vancouver-based EA over its use of his likeness in the popular Madden NFL game. This isn’t the first lawsuit over the use of football players’ images – last year, a group of players successfully sued the National Football League Players Association for claims arising out of royalty rates for the use of players’ images in EA games.  In the Brown decision however, the court rejected Brown’s complaint. 

In the US, video games are a form of protected expression qualifying for a free-speech defense, and EA made a successful free speech defense to this claim. 

The case turned in part on the fact that the character in the game was one of thousands of “virtual athletes”.  This particular character may have outwardly resembled Brown to football fans (they would have recognized his jersey number and designation as a running back), but Brown’s name was not used in the game or in advertising. If EA had made any of these mistakes – using his name or likeness in advertising – then they likely would have been tripped up by Brown’s Lanham Act complaint. This claim is based on the idea that an advertiser can’t falsely claim that a celebrity has somehow sponsored or endorsed their product.  EA did not attempt to signify that Brown endorsed the games, so EA did not get tackled by the Lanham Act claim.

Calgary – 13:45 MST

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