What happens when a video game maker creates an avatar bearing someone's likeness, but without using their name?
In this case, they get sued.
Michael "Tony" David has filed a class action lawsuit against video game maker Electronic Arts, known for the tagline, "EA Sports. It's in the game." Davis filed the lawsuit on behalf of 6,000 retired NFL players who are allegedly "In the game," Madden NFL '09, without their permission. The suit seeks compensation for actual, statutory and punitive damages. David claims EA has deprived and violated the right to publicity of the class action and that the court should disgorge all profits attributable to the use of their likeness.
The class action lawsuit alleges that EA wrongfully inserted the players' likenesses into the best selling football game, including appearance, statistics, positions, height and weight. The game maker did not use the players names or numbers, allegedly in order to avoid paying licensing fees. The suit also alleges that Electronic Arts stopped using the "historic teams" in the 2010 version of the game because the company was aware that their actions were illegal.
Legendary retired NFL football player and activist Jim Brown already filed a similar lawsuit which was dismissed in 2009 by U.S. District Court Judge Florence Marie-Cooper. The ruling was appealed to the 9th Circuit which declined to hear the appeal. Cooper's opinion stated that the video game was a protected form of expressive content that was protected by the First Amendment. Cooper has since deceased, so it will be up to a new judge to rule on David's class action case, Geek.com reports.
The class action suit seeks actual damages, statutory damages, and punitive damages for deprivation and violation of publicity rights in addition to the "disgorgement of all profits attributable to the use of Class Members' likenesses earned by EA."