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Cengage Advantage Books: Business Law Today, The Essentials 11th Edition by Roger LeRoy Miller
النسخة 11الرقم المعياري الدولي: 978-1305574793Cengage Advantage Books: Business Law Today, The Essentials 11th Edition by Roger LeRoy Miller
النسخة 11الرقم المعياري الدولي: 978-1305574793 تمرين 1
Davis v. Electronic Arts, Inc.
United States Court of Appeals, Ninth Circuit, 775 F.3d 1172 (2015).
FACTS Electronic Arts, Inc. (EA) makes and sells the video game Madden NFL, which allows users to play virtual games between National Football League (NFL) teams, both current and "historic." EA's artists create avatars of the players, each of whom is identifiable by position, years in the NFL, height, weight, skin tone, and skill.
EA pays a fee to use the likenesses of current players, but not to use the likenesses of former players on the historic teams. Those players filed a suit in a federal district court against EA, alleging a violation of their "right of publicity"-the right to control the use of one's likeness and prevent another from using it for commercial purposes without consent.
EA filed a motion to strike the complaint. The court denied the motion. EA appealed to the U.S. Court of Appeals for the Ninth Circuit, arguing that its use of the likenesses is protected under the First Amendment to the U.S. Constitution as an incidental use.
ISSUE Are the players likely to prevail against EA's defense of incidental use
DECISION Yes. The U.S. Court of Appeals for the Ninth Circuit affirmed the lower court's denial of EA's motion. The appellate court held that EA's use of the players' likenesses is not incidental "because it is central to EA's main commercial purpose."
REASON Video games are protected under the First Amendment, because like books and movies, "video games communicate ideas-and even social messages." A number of factors establish an incidental use. These include the uniqueness and significance of the use's contribution to the work's commercial purpose. Here, "the former players' likenesses have unique value and contribute to the commercial value of Madden NFL " as indicated by the lengths to which EA goes to achieve realism in representing the players.
Other factors are the relationship of the use to the purpose of the work, and the prominence of, in this case, the likenesses. "The former players' likenesses are featured prominently in a manner that is substantially related to the main purpose and subject of Madden NFL -to create an accurate virtual simulation of an NFL game."
CRITICAL THINKING-Political Consideration Why is the incidental use of a person's likeness without his or her consent permitted
United States Court of Appeals, Ninth Circuit, 775 F.3d 1172 (2015).
FACTS Electronic Arts, Inc. (EA) makes and sells the video game Madden NFL, which allows users to play virtual games between National Football League (NFL) teams, both current and "historic." EA's artists create avatars of the players, each of whom is identifiable by position, years in the NFL, height, weight, skin tone, and skill.
EA pays a fee to use the likenesses of current players, but not to use the likenesses of former players on the historic teams. Those players filed a suit in a federal district court against EA, alleging a violation of their "right of publicity"-the right to control the use of one's likeness and prevent another from using it for commercial purposes without consent.
EA filed a motion to strike the complaint. The court denied the motion. EA appealed to the U.S. Court of Appeals for the Ninth Circuit, arguing that its use of the likenesses is protected under the First Amendment to the U.S. Constitution as an incidental use.
ISSUE Are the players likely to prevail against EA's defense of incidental use
DECISION Yes. The U.S. Court of Appeals for the Ninth Circuit affirmed the lower court's denial of EA's motion. The appellate court held that EA's use of the players' likenesses is not incidental "because it is central to EA's main commercial purpose."
REASON Video games are protected under the First Amendment, because like books and movies, "video games communicate ideas-and even social messages." A number of factors establish an incidental use. These include the uniqueness and significance of the use's contribution to the work's commercial purpose. Here, "the former players' likenesses have unique value and contribute to the commercial value of Madden NFL " as indicated by the lengths to which EA goes to achieve realism in representing the players.
Other factors are the relationship of the use to the purpose of the work, and the prominence of, in this case, the likenesses. "The former players' likenesses are featured prominently in a manner that is substantially related to the main purpose and subject of Madden NFL -to create an accurate virtual simulation of an NFL game."
CRITICAL THINKING-Political Consideration Why is the incidental use of a person's likeness without his or her consent permitted
التوضيح
موثّق
موثّق
Case introduction:
E developed a video game and sells to the customers and allows them to play virtual games using NFL teams. The avatars of the current and historic teams are created using their likeliness. It pays the fee only for the current players. The former players sued E under the violation of their right of publicity as it used their likeliness without their consent.
E filed motion to dismiss the suit but the federal court denied. E appealed for the court of appeals claiming that the use of likeliness is an incidental use and protected by the first amendment.
Case analysis:
Incidental use of person's likeliness refers to using the name, face or character of a personality for commercial use without taking a formal permission to do so. In accordance with the ninth amendment, video games are protected under incidental use clause because it communicates ideas and social message.
The contribution of the likeliness towards the commercial purpose is also a factor which decides the incidental use. For example, using images or quotes of the famous personality on books or in movies and video games where the usage is considered as reasonable. Sometimes in accordance with particular game or movie using the virtual image of celebrity is mandatory to spread the same message to which it is meant for.
In this case, the video game is designed to allow the customers to use the players of NFL teams and play virtual matches. The likeliness of players has more impact on the customers who play the game and contribute towards the success of the game. Hence, the court declared that the use of likeliness is not incidental use.
E developed a video game and sells to the customers and allows them to play virtual games using NFL teams. The avatars of the current and historic teams are created using their likeliness. It pays the fee only for the current players. The former players sued E under the violation of their right of publicity as it used their likeliness without their consent.
E filed motion to dismiss the suit but the federal court denied. E appealed for the court of appeals claiming that the use of likeliness is an incidental use and protected by the first amendment.
Case analysis:
Incidental use of person's likeliness refers to using the name, face or character of a personality for commercial use without taking a formal permission to do so. In accordance with the ninth amendment, video games are protected under incidental use clause because it communicates ideas and social message.
The contribution of the likeliness towards the commercial purpose is also a factor which decides the incidental use. For example, using images or quotes of the famous personality on books or in movies and video games where the usage is considered as reasonable. Sometimes in accordance with particular game or movie using the virtual image of celebrity is mandatory to spread the same message to which it is meant for.
In this case, the video game is designed to allow the customers to use the players of NFL teams and play virtual matches. The likeliness of players has more impact on the customers who play the game and contribute towards the success of the game. Hence, the court declared that the use of likeliness is not incidental use.
Cengage Advantage Books: Business Law Today, The Essentials 11th Edition by Roger LeRoy Miller
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