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Closing the 'Free Speech' Loophole: The Case for Protecting College Athletes' Publicity Rights in Commercial Videogames

34 Pages Posted: 1 Apr 2012 Last revised: 28 Jul 2015

Marc Edelman

City University of New York - Baruch College, Zicklin School of Business; Fordham University School of Law

Date Written: March 31, 2012

Abstract

This article argues that despite “free speech” concerns, courts should protect college athletes’ publicity rights in commercial videogames. Part I of this article discusses the status of the American college athlete and the practice of licensing intellectual property rights from colleges to videogame publishers. Part II introduces the state-law right of publicity: an intellectual property right that protects commercial interests in one’s own likeness. Part III explains why Electronic Arts’ videogames violate the publicity rights of college football players. Part IV explains why courts should not allow videogame publishers to hide behind a First Amendment defense when using exact depictions of college football players’ likenesses. Finally, Part V concludes that even if a videogame publisher were to create an avatar that partially transforms a college athlete’s likeness, the courts should still recognize some liability in the videogame publisher for use of the non-transformed aspects of the college athlete’s identity.

Keywords: publicity rights, right of publicity, freedom of speech, First Amendment, sports law, sports, NCAA, videogames, video games, college, college athletes, student-athletes, transformative element, amateurism, avatar, likeness, image, computer

JEL Classification: D60, I20, I29, I30, J41, K11, K12, L83, M50, M54, M59

Suggested Citation

Edelman, Marc, Closing the 'Free Speech' Loophole: The Case for Protecting College Athletes' Publicity Rights in Commercial Videogames (March 31, 2012). 65 Florida Law Review 553 (2013). Available at SSRN: https://ssrn.com/abstract=2032121 or http://dx.doi.org/10.2139/ssrn.2032121

Marc Edelman (Contact Author)

City University of New York - Baruch College, Zicklin School of Business ( email )

One Bernard Baruch Way
Box B9-220
New York, NY 10010
United States

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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