Advancing Video Game Technology May Be Too Realistic

Technological improvements in the realistic portrayal of college athletes in video game graphics may partially be to blame for a string of recent legal disputes against major video game developer Electronic Arts, Inc. (“EA”).  NCAA college athletes have filed actions against EA for unauthorized use of their names and likenesses, a charge that falls under the statutory and common law right of publicity. This is a relatively new charge in the world of video games because, up until recently, video game creators simply lacked the technical expertise and financial support to develop specific likenesses with such accuracy.  Although this has revolutionized the gaming world and is now expected by consumers, it has also made video game developers more vulnerable to legal ramifications.

The gaming world is evolving and adapting to new technology more rapidly than industries like music and film. Extraordinarily high development costs granted to video game developers as a result of fewer produced games has helped expedite this progress.  As an example, the development costs of Grand Theft Auto V were allegedly over $100 million. As a result of high production budgets, gaming capabilities such as force feedback, which sends an electric current to the user, enhanced motion tracking technology, and virtual reality are on the horizon.

As gaming technology has advanced, so have consumer expectations about the level of reality each game can reach. One of the most important elements of a realistic experience is the representation of other humans. In fact, bridging “the uncanny valley” is one of the primary goals of video game designers in the next decade.  Realistic human representation is particularly important in the sports video game context given the necessity to recreate a very specific, detailed experience that is as true to life as possible.  In a study recently conducted researching digital representations in college sports video games, 56% of respondents reported that the presence of real players in a game was somewhat or extremely important to their gaming experience.  Although specific player names are not included in NCAA video games, due partially to strict NCAA amateurism rules, improvements in graphics have allowed gaming developers to create extremely realistic avatars with the help of viewing hundreds of hours of game footage to capture the nuances, style, and movements of particular players.  EA executives even acknowledge that numbers, biographical information, and team charts are used in an attempt to make the players perform as their real life counterparts would.  SN Nation compared players in NCAA Football 14 with their real-life counterparts and found widespread similarities in position, heights, weight, home state, and number. EA made the experience so realistic that the details are accurate right down to the type of football used by each team.

As a consequence of these major strides towards realistic representation in video games, several NCAA athletes, including Samuel Keller, quarterback for Arizona State, have filed lawsuits against EA objecting to the use of their likenesses in video games.  One of the reasons why these issues are arising now is because early sports video games used anonymous players and teams and the graphics at that time were not advanced enough to provide a true likeness sufficient to mount a challenge for using a particular player’s actual likeness.

Although video games are entitled to First Amendment protection as expressive works, states also recognize the right of publicity.  The right of publicity protects an individual’s right to control the commercial value and exploitation of their name or likeness and prevent others from unfairly appropriating this value.  In order to determine whether a video game qualifies for First Amendment protection, it must be sufficiently transformative.  To be sufficiently transformative, the work at issue must add something new to the original creation with a further purpose or different character, altering the original with a new expressive meaning or message that makes the new work “transformative.”  Accordingly, a literal depiction or imitation would not include elements of creative expression significant enough to outweigh the economic interests protected by the right of publicity.

In a ruling last month, the Ninth Circuit found that EA’s NCAA Football series of video games did not “sufficiently transform” the images of the players because the game “literally recreate[d] Keller in the very setting in which he has achieved renown.” Ultimately, because EA represented Keller as a starting quarterback for Arizona State, which is what he was in his real-life setting, his likeness had not been sufficiently transformed. In a similar suit, the Third Circuit also found that the use of an athlete’s image in EA’s NCAA Football series of video games was not transformative.

As a consequence, on Sept. 26, 2013, EA reached a settlement agreement with the former athletes and promptly announced that it will not be publishing a new college football game next year.  By giving consumers the realistic experience that they desired through highly skilled production, EA removed itself from the protections of the First Amendment and consequently out of the market.

In the Ninth Circuit dissent, Judge Thomas expressed concern that the ruling would jeopardize the First Amendment protection of depictions of actual people, which could extend to creative uses of historic figures in artistic media. Given the implication that these rulings could have on First Amendment application, as well as state and federal interests, the issue could make its way to the Supreme Court for final clarification. In the meantime, however, video game designers will likely avoid using likenesses when licenses are unavailable and will resort to generic avatars. Although in some video game genres the use of generic avatars will not substantially affect the user experience, sports video games center on a realistic experience.

Technological and graphic development will continue, but this line of decisions could have a chilling effect on digital representation in the video game industry. Developers will likely err on the side of caution as they walk a fine line between abiding by the law and continuing to provide consumers with the realistic gaming experience that they want.

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