Former NFL running back Jim Brown has filed a complaint against Electronic Arts (EA) and Sony for using his image in EA’s Madden NFL series without his authorization. He is claiming unspecified damages and an order to stop any such use. While modern athletes sign agreements to use their names and likenesses in games, video games did not exist when Brown played for the NFL; he therefore never had the chance to sign away the rights for his image to be used in video games. At the time, the NFL also prohibited players from using lawyers/agents when negotiating contracts.
While Brown isn’t actually named in the game, the player is described as a “muscular African American … wearing the number 32 on the historic ‘All-Browns team’” (Brown played for the Cleveland Browns from 1957 to 1965). Football aficionados know there are several African-American, muscular running backs in the NFL, but this team’s #32 slot was retired with Brown, making it fairly obvious who #32 in the game represents. Further, the fact that the historical teams on the game still have their real NFL names and logos gives football buffs a clear idea of who each player on the team is. However, this begs the question of whether a team number can be trademarked. In Canada at least, even mere usage of a trademark for a certain period of time establishes ownership of the trademark, which comes with certain associated rights, and Jim Brown had his number for eight years.
In Ali v. Playgirl, Muhammed Ali sought an injunction forcing Playgirl Magazine to cease distribution of an issue containing a picture of a muscular black man seated in the comer of a boxing ring. This, along with the accompanying captions “mystery fighter” and “The Greatest” was found to be enough to rule in favor of Ali. Similar cases exist in which celebrity catch phrases or jersey numbers have been enough for the courts to rule in favour of the plaintiff.
EA has an exclusive license with the NFL, which covers all NFL teams, players, and stadiums. If Brown is successful, major changes may occur; while it would be impractical for EA to sign individual contracts with thousands of players, EA may be able to get away with only signing with unions representing retired players. Losing this lawsuit might also motivate EA to simply scramble up the jersey numbers, team names, and physical likenesses of players so much that there is little resemblance between the historical teams and their real world counterparts, which, for countless fans, would defeat the purpose of including historical teams in the first place.
While Sony is named in the suit for its role in the manufacture and distribution of the games, no mention is made of Microsoft or Nintendo, who would have also used similar players for versions of the games on their platforms. Provided Brown is successful, they may be targeted next.
Sports.espn.go.com, “Brown suing EA, Sony over ruse of his likeness in video game” July 31, 2008. 447 F. Supp. 723 (S.D. N.Y. 1978)
Supra note 1.