By Richard J. Gray, of Singularity LLP
There has been extensive litigation by athletes regarding claims of unauthorized use of a player’s likeness in video games. Two decisions from the Ninth Circuit have affirmed the athlete’s right to bring such claims for both amateur athletes Keller v. Elec. Arts (In re NCAA Student-Athlete Name & Likeness Licensing Litig.), 724 F.3d 1268 (9th Cir. 2013) and professionals, Davis v. Elec. Arts, Inc., 775 F.3d 1172 (9th Cir. 2015). The Keller court described the right being protected as follows: “Often considerable money, time and energy are needed to develop one’s prominence in a particular field. …. For some, the investment may eventually create considerable commercial value in one’s identity.” 724 F.3d at 1280.
But a recent decision confirmed that there are limits to this right. The Plaintiffs in Maloney v. T3Media, Inc., CV14-5048-AB (VBKx) (C.D. Cal. Mar. 6, 2015) Dkt. No. 77 (Minute Order) were members of the Catholic University basketball team that won the 2001 Men’s Division III National Collegiate Athletic Association (NCAA) championship. The First Amended Complaint asserted multiple causes of action related to the sale, by the Defendant, of photographs of the Plaintiffs from the championship game. All the causes of action were based on a core claim that alleged a deprivation of their right-of-publicity under California law.
Plaintiffs also proposed that their lawsuit be a class action on behalf of all current and former NCAA student-athletes whose names, images, and likenesses were used without their consent in relation to a photo library consisting of thousands of photographs licensed to the Defendant by the NCAA.
Defendant moved to dismiss the lawsuit on the theory that they were merely selling photographs of the Plaintiffs under license by the NCAA. They argued that since the copyright in the photographs was a creature of federal law, the Plaintiffs were preempted from bringing a state law claim against those sales. The court agreed.
“Defendant correctly observes the difference between merely selling a copyrighted photograph containing an athlete’s likeness and using the athlete’s likeness contained in the photograph for some other purpose. In the first scenario, the athlete’s likeness is only used insofar as it is contained in the four corners of the copyrighted work, and the athlete’s state-law publicity claims are preempted. In the second scenario, the athlete’s image is used for some purpose beyond the four corners of the copyrighted work (selling a box of cereal or a t-shirt, for example) and suggests the athlete’s endorsement of that other use…. As discussed more fully herein, Plaintiffs do not allege (or offer prima facie evidence to suggest) Defendant used Plaintiffs’ likenesses for any purpose beyond the four corners of the copyrighted photographs themselves, and Plaintiffs claims are preempted by the Copyright Act.” Maloney v. T3Media, Inc., CV14-5048-AB (VBKx) (C.D. Cal. Mar. 6, 2015), Dkt. No. 77 (Minute Order, footnote 3) (Emphasis in original).
The Maloney decision provides no comfort to developers of sport video games. But to those selling copyrighted photos or videos that they either own or have properly licensed, it provides a powerful defense.
This summary was reprinted with permission of Singularity LLP (www.ipsingularity.com)
