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
Date Written: March 31, 2012
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: Suggested Citation