Who owns your likeness?

I’ve talked about issues of privacy and digital identity before, but a recent court case involves the intersection of both.  For years, companies such as Electronic Arts have been making video games about college athletics.  The problem is that college athletes are not able to sell their likenesses for personal gain (because, you know, they’re amateurs!).  In recognition of this fact, those making video games about college athletics change the names of the athletes while leaving other identifying characteristics such as physical traits, statistics, and even uniform numbers, intact.  The games do allow users to change the names of players, though, and fan dedication combined with internet connectivity means that updated rosters with players’ actual names are often available shortly after a game’s release.  For example, NCAA Football 12 was released on July 12 and this post from August 1 lists changed rosters for the two most advanced home consoles.

For players, the fact that others are profiting from their likenesses does not always go over well (though it sometimes does – the cover athlete is typically a player one year removed from college sports who appears in a college uniform).  Some college players are so upset about this that they do what any good American would do, they sue.  One such court case was recently dismissed by a federal district court because “EA’s right to free expression under the First Amendment supersedes a former quarterback’s right to control the use of his likeness.”   Video games, you see, are works of creative expression protected by the first amendment.

This is likely not the end of the road for court cases such as this.  The NCAA considered a rule change this year that would have allowed corporate sponsors to use clips of current athletes in advertisements as long as those advertisements included the name of the athletes’ institutions.