The Madden NFL series of video games is the latest victim of the rash of lawsuits attacking video games for allegedly using celebrity likenesses without permission. Earlier this month, a retired Cincinnati Bengal and Tampa Bay Buccaneer named Michael, a.k.a “Tony,” Davisbrought a class action lawsuit on behalf of 6,000 retired NFL players, accusing publisher EA Sports of using likenesses of retired NFL players in its games without permission. Our regular readers know all about the ubiquity of these right of publicity cases, and in particular, how they’ve emerged in the video game context. And the script is usually familiar: video game portrays well-known celebrity’s image or likeness, celebrity gets mad, and it’s off to the courthouse. But this case is particularly interesting, because the plaintiffs’ claims don’t actually involve EA using their names or likeness.
For those of you who don’t play video games and have never seen any of the Madden games (seriously? I mean, they’ve been around for 22 years now), one of the popular elements of those games is the ability to play “historical” teams. In other words, instead of selecting the 2010 Buffalo Bills as the team you are going to play with (big mistake), you can choose the 1990 Buffalo Bills (much better bet, notwithstanding “wide-right”). When playing one of these “historical” teams, the players on your team do not have names on their jerseys, their numbers do not correlate to the famous players at the relevant positions from the actual team, and the faces are not drawn to imitate the actual players. However, according to Davis’ lawsuit, the heights, weights, and playing statistics of the relevant players are virtually identical to the statistics of the real players who played specific positions on the actual team.
Although EA did not use his name (either of them — seriously, since when is “Tony” short for Michael?) or his image, Davis claims EA misappropriated his “likeness” because everyone supposedly would be able to identify him from the data (height, weight, years in the league and statistics) about the video game player. (And if you knew who the back-up running back for the 1979 Tampa Bay Buccaneers was before hearing about this lawsuit, you get a cookie). Seems far-fetched, right? I mean, aren’t most NFL running backs are between 5’9” and 6’1” tall and weigh between 200 and 220 pounds?
Well, nearly 20 years ago Vanna White managed to convince a court that a robot in an evening gown turning letters in a fake game show was a use of her “likeness” that violated her right of publicity. And Norm and Cliff from Cheers (George Wendt and John Ratzenberger) convinced a court that animatronics robots made to look like those TV characters and sit and the end of a bar were uses of their “likenesses” and a potential violation as well. So, maybe there’s something there.
Fortunately for EA, however, even if a computer-generated football player bearing similar statistics for height, weight and historical accomplishments could be considered a “likeness” of Davis, the Madden NFL games are protected by the First Amendment. Since the Vanna White and Cheers decisions, the California Supreme Court has greatly expanded the First Amendment defenses to right of publicity lawsuits. And as my colleague Dan has explained, the First Amendment protects the use of a celebrity’s likeness in a video game if the use is “transformative.” Here, EA has a pretty strong argument that the historical players’ identities were merely the “raw material” for the characters in the game. The programmers drew players and then simply associated various statistics with them. Davis will be hard pressed to argue that a generic, computer-generated football player with similar statistics to his is a direct and complete copy of his likeness.
What’s more, here, the use of statistics of professional athletes is separately protected as an editorial use under the First Amendment. Indeed, courts in California and elsewhere have previously concluded that using former baseball players’ statistics and biographical information in promotional programs, websites and games is protected by the First Amendment and does not violate the players’ rights of publicity. That’s because the history of sports is newsworthy, rendering the use of historical data and information about the game subject to First Amendment protection — think it of as judicial validation for all that agonizing you do over obscure statistics in your fantasy league.
So, at the end of the day, it seems Davis doesn’t have much of a claim. Which means that he can go back to his daily routine of being an obscure retired running back with a confusing name, and all you Madden fans can probably look forward to leading only-slightly-disguised-Terry Bradshaw and the 1979 Steelers to a lopsided victory over the defending Super Bowl Champion New Orleans Saints in Madden NFL 2012.