Judge Says Video Games Can Use Sports Stars Likenesses

from the protected-by-the-first-amendment dept

Earlier court rulings have found that sports leagues cannot stop videos games from using player stats, since that's factual information. But, what about player likenesses? Many had assumed that was still forbidden without a license, but a new court ruling has found otherwise. Former football player Jim Brown had sued EA, claiming the use of his likeness violated his rights, but a district court judge has dismissed the case, saying that video games are "expressive works, akin to an expressive painting that depicts celebrity athletes of past and present in a realistic sporting environment," and thus are protected by the First Amendment. The case will almost certainly be appealed, but for now, it's a big win for video game makers and their ability to use player likenesses in their games without licensing them first.

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Publicity Rights Of Dead People: Courtney Love Threatens Activision Over Kurt Cobain In Guitar Hero

from the welcome-to-the-digital-world dept

While we often talk about copyright, patents and trademarks as "intellectual property" (a misnomer, of course) there are some other related areas as well. One that has been growing in importance is the idea of "publicity rights" as a separate "right." The issue, of course, is usually about whether a company can use the likeness of someone for commercial purposes without their permission. But that issue is getting more and more complicated as technology gets better and better. In the last few decades, for example, there's been a growing trend to use famous dead people, such as John Wayne, Lucille Ball and Fred Astaire in commercials. But those mostly involved taking clips of those actors from existing films/TV and splicing them into a commercial (with permission from their estates). However, as some lawyers have been noting, with better and better digital technologies, this issue is becoming more important as it's now possible to digitally recreate someone for the purpose of film. Or, say, a video game. Apparently in Guitar Hero 5, singer Kurt Cobain has been... well... reanimated, and some find it rather distasteful (especially since he sings a bunch of songs you wouldn't expect him to sing).

Among those most upset? Cobain's widow, Courtney Love, who is threatening to sue Activision for breach of contract. Since she's claiming it's a breach of contract issue, there are (obviously) plenty of questions over what's in the actual contract. Still, like with patents and copyright, there is plenty of concern about how far publicity rights extend. In the Law.com article above, it notes that publicity rights didn't used to apply to the deceased, but that's changed. More troubling?

Initially, the right covered only a person's name and likeness. But courts expanded the protected "persona" to cover a variety of elements. Bette Midler and Tom Waits were allowed to pursue claims against advertisers featuring singers using similar vocal styles. Vanna White and George Wendt were allowed to sue companies using robots evoking their roles as the letter-turner and barfly in "Wheel of Fortune" and "Cheers" respectively. Lothar Motschenbacher was allowed to claim damages based on an advertiser's use of a distinctively ornamented racing car.

That certainly reflects the expansion of copyright and patents -- beginning narrowly focused and then expanding over time. I can certainly understand the desire for a "publicity right," but I wonder if it's not better handled through other laws -- such as trademark, fraud and contract law, rather than creating separate boundaries for "publicity rights." I can understand why Love is upset about the use of Cobain's image, but at some point you have to wonder whether it really makes sense to limit such uses. As the technology gets better and better, the legal questions are only going to get more complicated -- and, once again, we're likely to see the reach of such rights extended, perhaps in ways that make little sense.

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MLK Jr. Estate Threatening To Sue Vendors For Selling Products With Obama And King

from the get-over-it dept

The family of Martin Luther King Jr. has unfortunately done plenty to tarnish the great man's legacy over the last few decades, specifically in being overly aggressive claiming "ownership" of anything having to do with King, and demanding money from various entities that show King's speeches. A decade ago they were involved in a big legal fight with CBS for showing King's I Have A Dream speech. Who knew that dream was locked up thanks to intellectual property laws?

Now the family is apparently threatening to sue anyone selling any kind of merchandise that includes images of King and President-Elect Obama, claiming that if others are making money off of King's image, King's family should get a cut: "We do feel that if somebody's out there making a dollar, we should make a dime." So, now, apparently that dream is to keep making money off a speech that was delivered decades ago.

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Marilyn Monroe's Estate Loses Rights To Photos After Fighting To Make Her A New Yorker

from the figure-this-one-out dept

It appears Marilyn Monroe's estate didn't think all the way through its strategy of posthumously moving the famed star to New York. Apparently, her family convinced California tax authorities that Monroe had been a New York resident, in an attempt to avoid paying taxes on the estate in California. Unfortunately for the estate, that would also mean that Marilyn Monroe's publicity rights died with her. As Against Monopoly points out in the latest example of the bizarre effects of intellectual property rules, California allows "rights of publicity" to live on after death -- meaning that images of famous people still need to be licensed. However, New York says your right of publicity dies when you die. So, a court has now ruled that, thanks to Monroe's own estate claiming that she was a New Yorker, there's no longer a right of publicity for Monroe, and photographers who own Monroe photographs shouldn't have to pay her estate (as they've done since her death). This has photographers claiming that the estate has been unfairly demanding licenses for many years. Next time, perhaps Monroe's estate will just pay the taxes it owes. But, in the meantime, we get to see the bizarre impact of rules such as "publicity rights" which have forced photographers to pay to use photographs they took for many years.

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Buddy Holly's Estate Trying To Use Intellectual Property Laws To Stop Peggy Sue Autobiography

from the not-what-IP-is-for dept

Someone who prefers to remain anonymous sent in an article about how Buddy Holly's widow is trying to stop the publication of an autobiography by Peggy Sue Gerron, supposedly the woman whose name was the basis for Holly's famous song "Peggy Sue." The complaint seems to be that Peggy Sue Gerron is using Buddy Holly's "name and likeness" without permission. Though, the more likely explanation is that the Holly estate feels that it should get paid for this story, even though the story is told from Peggy Sue Gerron's own perspective. It has all the earmarks of a shakedown. And, of course, it will fail. It's unlikely that there's much of a case here. The most likely result will be that the book is allowed to be published and all this lawsuit will have done is to draw plenty of extra attention to the book, Whatever Happened to Peggy Sue?

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