The sports-media industry has experienced a proliferation of litigation involving right of publicity claims asserted by student athletes for the unauthorized use of their names, images and likenesses. This raises the question of whether collegiate athletes should be paid for the commercial use of their identity, as they are currently only allowed to be compensated through scholarships.
In the article “When Keeping It Real, Goes Wrong: How Ed O’Bannon Changed the Game,” published in Sports Litigation Alert, Partner Uleses Henderson discusses several prominent cases of publicity rights in video games that feature collegiate sports players’ likenesses without compensating them.
One main issue in sports media cases is the use of avatars that resemble the height, weight, positions, playing abilities and special movies of certain collegiate players. Similar right of publicity claims don’t just stop at the collegiate level, as EA recently lost its appeal before the Ninth Circuit Court to dismiss claims by approximately 6,000 retired NFL players. “While these games don’t use their names, their jersey numbers are used and the players are easily recognizable,” Uleses says. “The players’ likenesses in the Madden NFL video games are not sufficiently different or transformative to confer protection.”