Intellectual property attorneys Sid Venkatesan and Gabe Ramsey and law clerk Randy Wu co-authored an article in TechCrunch discussing a U.S. District Court judge finding the antitrust claim for an injunction against the NCAA filed by a class of former Division I college athletes could proceed as a class action, which could limit the NCAA’s ability to license the players’ names, images and likenesses. An excerpt from the article is included below.
On November 8, U.S. District Court Judge Claudia Wilken partially ruled in favor of a class of former Division I college athletes in finding that their antitrust claim for an injunction against the NCAA could proceed as a class action. The players seek an injunction that, if granted, would limit the NCAA’s ability to license the players’ names, images and likenesses in various for-profit endeavors, including licensing to video-game makers.
This ruling is the latest development in a long-running dispute that originally began between the former players and both the NCAA, Electronic Arts, and a licensing entity. In late September of this year, EA exited the dispute via a highly publicized settlement with the former players that has led to EA dropping the NCAA Football franchise. The settlement followed decisions by two federal appellate courts that suggested that EA faced legal exposure from the use of the former players’ likenesses in the game.
Obviously, these cases will have significant impacts on the NCAA and EA. But the broader issue, and one that has significant implications for game developers beyond EA, is the uncertainty behind how courts will resolve right-of-publicity claims. Right-of-publicity disputes involving video game makers have popped up regularly over the years, affecting games that render realistic settings or even games that involve fantastical settings but import characters developed using real-world inspirations in their game.
This is an issue that affects large developers that have the budget to render lavish and realistic seeming worlds and even indies that now have the tools to render realistic games. Right-of-publicity issues may also impact developers that use purely hand-drawn fantasy worlds that include characters that draw inspiration from real-world personalities.
In addition, developers of MMO and similar games that involve significant use of user-generated content will face continued uncertainty and legal risk from real-world individuals that assert that user-generated avatars violate their rights of publicity.