10.4.17

Protecting Athlete Image Rights in Video Games

Image source: Diego Maradona Facebook
Last Week, Diego Maradona, announced via his Facebook page that he was taking legal action against Pro Evolution Soccer's publishers, Konami, following the unauthorised use of his image and name in the latest edition of the popular football video game. 

Konami swiftly responded with an official statement stressing that the player's image was being used appropriately on the basis of the license that they had obtained. According to reports, Konami signed a 3 year deal with FC Barcelona in 2016, allowing them to use the images of current and former players of the club in their video game.

What are Image Rights?


Image rights can be defined as the right of an individual to control the commercial use of his/her name, image and likeness - this may be through endorsement or sponsorship deals with various brands. Image rights will usually focus on the distinct characteristics of a person such as their name, image likeness, signature moves, voice, nickname, signature etc. In some jurisdictions, the law may allow a person to commercially exploit and protect his/her image whilst preventing any possible infringements. 

Upon signing an employment contract, athletes (depending on their commercial value) will usually enter into some form of image rights agreement. This allows the club/employer (as well as their sponsors) to exploit the athlete's image for profit whilst agreeing on a figure for compensation, for such use, to the player. (This is a common occurrence in popular sports such as football).

In football, as a result of the common occurrence of image rights agreements, FIFA has set out its own recommendations as to how clubs and players, should agree their image right deals and what is seen as good practice, to avoid any confusion.[1]

The Regulation of Image Rights


Whether or not an athlete can recover compensation for unauthorised use of his/her image rights differs from country to country. The USA, for instance, recognises image rights as an economic right arising from the law of privacy, which is enshrined in the American Constitution. Much of Europe is also now recognising image rights, as a legal personality right, due to the growing commercial value in celebrity images.[2]

UK law has yet to move in the direction of the USA or the rest of Europe and to this date, does not recognise an individual's image/likeness/name etc as a legal property right and consequently, there is no automatic right to protect/enforce it. However, it should be noted that claims for compensation for unauthorised use may still arise, in certain circumstances, through what is known as 'passing off'.

Passing off


In the UK, athletes may have a remedy under what is legally known as 'passing off' - this is where one party (in video games, the publisher) exploits another party's (in this case, the athlete) image/likeness/logo etc (commercial goodwill), without authority. In order to succeed in a 'passing off' claim, the athlete would have to prove that he/she has commercial value in his/her name, brand, image etc and that the general public could be confused as to whether he/she is officially endorsing the product, by the use of his/her image on or in the product, without authorisation.

As a result, a successful claim will depend on the individual circumstances of each case.

Video Games


Today's video games are unrecognisable from the household names that were available for consoles in the 1980s and early 1990s. Gone are the basic pixelated graphics and midi-style music - in the present market, the graphics have significantly evolved into realistic 3D life images and advances in technology have increased the ability for graphic designers to re-create the image and characteristics of real-life athletes, within video games.

Football games, in particular, create a real-life experience on the console by having realistic looking stadiums, branding, league logos, player images as well as team crests and kits. Whilst this, of course, all adds to the gaming experience, it also creates the opportunity for intellectual property infringement whether that be through copyright, trade mark infringement or a breach of an image right giving rise to a claim for 'passing off'.

The Official Football Video-Game - FIFA

Image source: Playstation

As football's world governing body, FIFA, produces the well-known football game of the same name, along with the publisher, Electronic Arts.

Unlike other video games, the FIFA game is able to include the official player names, images and clubs as a result of having the official license, regardless of any protection that the individual players may have in place.

As a result of this, the governing body enjoys the official right to use all player/team image rights, within their video game, which in turn ensures that the franchise remains top of the charts and earning significant revenues.

Third-Party Video Games and avoiding claims for 'Passing Off' under UK law


If a publisher fails to obtain a license, generally speaking, the use of a players' image (by re-creating it as a computerised avatar) would unlikely give rise to a claim so long as the name of the player was not used. If you look at many of the unofficial football games available on the market, you will note that they all use images that look similar to the actual football player but refrain from using the correct name. 

The reason for this, as explained above, is that to be found guilty of 'passing off', there must be a likely misrepresentation that the player in question could be considered as endorsing the product. In a video game where numerous players are featured, it could be difficult to find the link between who is and who is not endorsing the product.

The rule of thumb for publishers of video games, without a license to use image rights, is to refrain from using the name of a player when creating a computer graphic avatar that bears a resemblance to the real article. Failure to do so could result in an expensive lesson.

Similar cases from the US


The UK has yet to see any legal disputes arising from a breach of image rights within video games but the US Courts have recently had their first taste through the NCAA disputes and a legal challenge by Lindsay Lohan against the publishers of popular video game, Grand Theft Auto.

NCAA Exploitation of Athlete Image Rights

Image source: EA

The National Collegiate Athletic Association (NCAA) organises collegiate sporting activities across the United States. It is worthwhile noting that college sports in the US has a huge following and therefore enjoys significant commercial benefits. 

In order to participate in NCAA competitions, which cover a range of sports, student athletes are required to sign an agreement authorising the association to use the athlete's name and image to promote NCAA competitions and merchandise. Under the agreement, student athletes were not compensated for the use of their image rights, despite generating millions of dollars through revenues. Merchandise in which athlete images were used included video games in which the NCAA had partnered with publisher, Electronic Arts. 

This gave rise to a number of lawsuits in the USA whereby athletes argued that they had been denied their right to commercially exploit their own image, name, likeness or voice, by being denied a share of any revenues earned.

A settlement was reached between Electronic Arts, the NCAA and the athletes who brought the action. The settlement agreement was approved by a US Court, in the region of $60million which was distributed between the athletes. The sums received by each individual varied depending on the extent to which the athlete appears in the video game in terms of name, jersey, photograph and the number of years that the athlete's 'likeness' had been used, within the game.

Lindsay Lohan & Grand Theft Auto 

Image source: WhatsTrending.com

Hollywood actress, Lindsay Lohan, filed a complaint after her image was used by the publishers of Grand Theft Auto. 

According to the complaint, Lohan alleged that the publisher had used her image for one of its characters, Lacey Jonas, both in the game and on promotional material ahead of its release. In creating the electronic image, Lohan argued that the publisher had used her shoulder-length blonde hair as well as a bikini she owned, jewellery, mobile phone, avatar sunglasses and signature peace-sign pose.

However, the Court disagreed and stated that the claim failed because the "defendants did not refer to Lohan by name in the video game, never used Lohan herself as an actor in the video game and never used a photograph of Lohan...The video game's unique story, characters, dialogue and environment, combined with the player's ability to choose how to proceed in the game, render it a work of fiction."

As a result, Lohan's case failed but according to reports, Lohan has appealed against the decision to the New York State Court of Appeal.

Concluding remarks


Regardless of jurisdiction, it is easy for publishers to fall into the trap of infringing an athlete's image rights whilst trying to make sports video games look as realistic as possible, in order to enhance the gaming experience.

If in doubt, publishers should always seek advice on the scope of their IP agreements and if no license has been obtained for the use of image rights within the game, it is best to err on the side of caution and refrain from using any distinguishable images, marks, logos and names of athletes.


IMPORTANT: This post is not intended to be a legal briefing, it is not intended to be a statement of the law and no action should be taken in reliance on it without specific legal advice.


References:

[1] Lewis and Taylor, Sport: Law and Practice, (2013), pgs 1360-1417

[2] Carolina Pina (Garrigues) presentation on The Role of IP for Athletes and Image Rights

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