you can't copyright a fact. even stupid ones.
Via Begging To Differ, this strikes me as a pretty encouraging development. A federal judge has held that fantasy sports leagues don't have to pay licensing fees to the sports monopolies (Major League Baseball, in this case) in order to use the names and statistics of players.
That's all good and correct. Fantasy sports aren't the most important front in the intellectual property wars, but the general trend of restricting others' ability to describe reality — patenting genes comes to mind — is a nasty one that we've been headed down for a while.
Of course, the really important implications of this decision relate to videogames (as does anything of import). You might remember that EA has been buying exclusive deals with the various sports leagues, freezing out any potential competition. Well, the leagues' official imprimaturs and team names will still be protected as trademarks. But now a non-lawsuit-averse company could create a game with all the players from your favorite teams, but call the teams something different. Variations on this have been done before; this would seem to make it safer.
The flip side is that the decision undercuts individual players' bargaining positions. It seems that we'll never have another NBA Jam style-situation: that game famously features Scottie Pippen as its best player because the game producers couldn't or wouldn't meet Michael Jordan's licensing demands (every other player's likeness was licensed under a blanket agreement with the NBA, I believe).
On a sadder note, this decision also seems likely to allow the NCAA to abuse their student athletes even further. If I remember correctly*, the NCAA Football videogame franchise only assigns numbers to players, not names — if they did the latter, they'd actually have to pay some money to the athletes. And that would be terrible. Now that likenesses, names and stats aren't protected, it appears that nothing is stopping them.
I'm sure there are mountains of law related to personal endorsements that I'm not aware of. But I'd expect that a fantasy baseball league and a football videogame are fairly similar enterprises in the eyes of the law. If that's true, it just got a lot cheaper to produce both.
* this may have changed — it's been years since I played an NCAA videogame
Comments
Tom,
Not sure that's one hundred percent correct. I think the players can actually license their likenesses and names (though I'm not 100% sure). So for games like Madden, I think they might still have to pay a fee as they are using a likeness of the player, whereas fantasy leagues don't show any likeness other than the name. MJ was left out of NBA Jam, probably, because he didn't have a deal set up with the NBA Players Association. Same reason why Barry Bonds doesn't show up in MLB games. He doesn't have a deal with the MLBPA. physical representations of actual people can be licensed. their names? probably not so much.
Hmm. So, how accurate does the likeness have to be for it to qualify as a representation of a specific player? Or would the act of having the name appended make the difference? In an NFL game, I could see a market emerging for players willing to license their faces -- you could decide to only provide post-play closeups on those who you had cleared the rights for. I have a hard time imagining that a player could charge for having his name assigned to a generic avatar that hasn't been designed to look like him -- but maybe.
If I remember correctly*, the NCAA Football videogame franchise only assigns numbers to players, not names
As of last year, NCAA Football 06 still just had numbers for all of the players, despite the fact that all of the in-game players are modeled to look like the real ones. It doesn't matter if if the player is accurately represented, as long as their name isn't on the jersey. If I'm not mistaken, the official replica jerseys endorsed by the NCAA also lack names because of the same hair-splitting reasoning.
That's what I thought. So it seems they can create a likeness, but as long as they don't use the name, not pay for it. Now they can use the name without paying for it -- but if they use the name AND the likeness, do they have to start licensing the likeness? I'm not at all clear about it.
The NCAA thing about not using players' names has to do (I think) with the prohibition on college athletes getting paid, in this case through royalties. Likewise, they can't do product endorsements. This is why the covers of the NCAA games (which have photos of real players) only feature graduated seniors, or players who have already turned pro. I'm not sure how it works for games that deal with the professional leagues, though.
Upon further reading, that's pretty much what you already said about not needing to pay for likenesses without names.
So it seems they can create a likeness, but as long as they don't use the name, not pay for it.
I'm pretty sure that this is really something that only applies in the case of the NCAA (so they can get their licensing money while preserving the illusion of student-atheletes in Division I schools). I vaguely recall a lawsuit by Oliver Kahn against the makers of the EA games for having a player named "Oliver Khan" in one of their FIFA games. Admittedly, this is straying a bit, since it involves international law and the problems of licensing soccer players from across the world as opposed to negotiating licensing rights with a single body representing players in an American league. Not sure what the eventual fallout of Kahn's lawsuit was though. I'll have to go over to someone's house and see if he's available as the goalie for Germany in the last edition of FIFA.
I wouldn't trade using QB Bills to marshall my overwhelming offense in Tecmo Super Bowl for anything.
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