Bloomberg News reports that Jim Brown filed a lawsuit last week against Sony and Electronic Arts alleging that the unauthorized use of the character in the "Madden" football video game, part of the "Real Old School Teams and Players'' series -- a muscular, African-American running back wearing the number 32 jersey who is featured in the game's "All Brown's Team" -- violates his right of publicity. There will be two main defenses asserted here, neither of which is very compelling.
The first defense will be that Jim Brown's name and picture are not being used, and therefore his identity is not being exploited. However, it is well-established by case precedent that the identity element necessary for a right of publicity cause of action is met when there is a sufficient link between the particular plaintiff and the defendant’s use, in other words, that the defendant is actually referring to the plaintiff. In Doe v. TCI Cablevision, the court explained: "To establish that a defendant used a plaintiff's name as a symbol of his identity, the name used by the defendant must be understood by the audience as referring to the plaintiff....In resolving this issue, the fact-finder may consider evidence including the nature and extent of the identifying characteristics used by the defendant, the defendant's intent, the fame of the plaintiff, evidence of actual identification made by third persons, and surveys or other evidence indicating the perceptions of the audience." In Jim Brown's case, the defendants will have a difficult time convincing a court that those playing the video game do not understand that the character in the game is referring to Jim Brown. Here are a few cases that support Brown's case against EA:
- Carson v. Here's Johnny Portable Toilets, Inc. -- held the phrases “Here’s Johnny” and “The World’s Foremost Commodian” were clearly referencing Johnny Carson even though his name wasn't being used.
- Ali v. Playgirl, Inc. -- held that the defendant’s use of a drawing of a black man seated on a stool in the corner of a boxing ring captioned as “Mystery Man” and “the Greatest” sufficiently identified Muhammad Ali even though his name and picture were not being used.
- Hirsch v. S.C. Johnson & Son, Inc. -- held that use of the name "Crazylegs" on a shaving gel for women violated the right of publicity of a famous football player named Elroy Hirsch, who had been known by this nickname.
- Motschenbacher v. R.J. Reynolds Tobacco Co. -- held that the image of a race car driver in a red racing car with a white pinstripe and number "11" sufficiently identified a professional race car driver whose number "71" race car was always in red and white with the same pinstripe.
- White v. Samsung Electronics America, Inc. -- court found that the use of mechanical robots clearly resembling Vanna constituted a violation.
Jim Brown's case is similar to the use of identities of amateur players in video games, which I discussed in a "Letter to Tim Tebow" back in December.
The second defense most likely to be asserted is that the First Amendment trumps the right of publicity. The defendants will most likely rely on the Eighth Circuit's recent decision in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., whereby the court applied a precarious "public domain" standard to hold that the use of names and statistics of professional baseball players by fantasy leagues without authorization is protected by the First Amendment.
Jim Brown's case highlights why the Eighth Circuit's public domain standard simply does not work in evaluating when the First Amendment outweighs a right of publicity claim. Jim Brown is a high profile former professional athlete and public figure. Thus, by definition, he is in the public domain. A public domain standard would essentially eliminate ALL right of publicity causes of action where the defendant uses a high profile person's identity without authorization in every single context, whether that be unauthorized use in fantasy leagues, video games, trading cards or advertisements.
As I advocated in my Penn State Law Review article, the only practical standard to apply in determining whether the First Amendment trumps a right of publicity claim in a given context must focus on whether the primary use of the plaintiff's identity by the defendant constitutes an expression protected by the First Amendment (e.g. news reporting, opinions and critiques written in magazine and internet articles, parodies, artistic expressions, etc.). While fantasy league use, video game use, trading card use and use in advertisements serve an ancillary function of informing the public (a legitimate First Amendment concern), the primary use in these contexts is simply not to inform the public.
If this case does not settle, it will ultimately test the limits of the Eighth Circuit's decision. And even if it settles, this case highlights the confusing and nonworkable standard adopted by the Eighth Circuit. This lawsuit also raises the question whether video game companies have the right to continue to commercially exploit the identities of amateur athletes without their authorization.
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