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In the story Peter Pan, Peter loses his shadow and is forced to chase it down in order to reattach it. A shadow isn't very substantive, but like any person, Peter wants his back because it is his shadow and his property. We take our shadows for granted - that we have them and they're ours and they can't be taken - and nobody expects to lose his or her shadow in the same way that Peter does. But what about our images? Like Peter, our names and likenesses cast a sort of shadow, ethereal but still substantive in that they can have value.
Peter's loss of shadow is somewhat analogous to what student-athletes have been losing to the NCAA - their collegiate images. In a consolidated class-action, Ed O'Bannon (UCLA basketball) and Sam Keller (Arizona State/Nebraska football) (among others) are taking the NCAA and Electronic Arts, Inc. to task for allegedly using, without compensation, the images of former student-athletes. And now, basketball great Oscar Robertson (University of Cincinnati) has joined the fray by filing a lawsuit against the NCAA and others, seeking damages for the use of his collegiate image on trading cards.
Below is a list of cases consolidated with lead consolidated action 4:09cv1967, Keller v. Electronic Arts Inc et al, U.S. District - California Northern:
A General Overview of the Multiple Complaints
As argued and alleged by the various plaintiffs:
The NCAA earns licensing revenues by using images of former student-athletes who once competed for NCAA member colleges or universities. The NCAA and its entities continue to enjoy commercial benefits from the sale and use of these images without sharing revenue with the former student-athletes. Revenue comes from several ventures, including:
It is argued that the NCAA attempts to cause student-athletes to release in perpetuity their rights to obtain compensation in connection with the NCAA's use (or use by the NCAA's designated "third parties") of a student-athlete's name or picture to generally promote NCAA championships or other NCAA events, activities or programs. The release in perpetuity arises from a combination of NCAA bylaws and required signatory-forms and covers likenesses that are created during the time period that a person is a student-athlete. NCAA Bylaw 126.96.36.199 contains several opportunities (loopholes if read another way) regarding the use of a student-athlete's "likeness" in that a member institution may use a student-athlete's name, picture or appearance to support charitable/educational activities or activities "incidental to" the student-athlete's athletic participation, provided certain conditions are met, including:
(g) The student-athlete's name, picture or appearance is not used to promote the commercial ventures of any nonprofit agency;
(h) Any commercial items with names, likenesses or pictures of multiple student-athletes . . . may be sold only at the member institution at which the student-athletes are enrolled, the institution's conference, institutionally controlled (owned and operated) outlets or outlets controlled by the charitable, educational or nonprofit organization . . . . Items that include an individual student-athlete's name, picture or likeness (e.g., name on jersey, name or likeness on a bobblehead doll), other than informational items (e.g., media guide, schedule cards, institutional publications), may not be sold . . . .
In addition, the NCAA is accused of sanctioning, facilitating and profiting from Electronic Arts, Inc.'s use of student-athletes' names, pictures and likenesses. Electronic Arts, the maker of NCAA basketball and football videogames, allegedly replicates student-athletes by reproducing, among other things, jersey numbers, physical measurements, skin tone, hair color, and hair styles. Furthermore, Electronic Arts allegedly allows third parties to create and market modifications to the NCAA games that allow players to upload complete roster information for various teams, including player names.
The legal arguments against the NCAA and/or Electronic Arts, Inc. follow three major tracks. They are:
Violation of Section 1 of the Sherman Act - 15 U.S.C. § 1
Unreasonable Restraint of Trade
Defendants entered into a continuing contract, combination, and conspiracy in restraint of trade to artificially depress, fix, maintain, and/or stabilize the prices paid (specifically, depressing, fixing, maintaining and stabilizing them at zero dollars) to Antitrust Class members for the use of, and to limit supply for, licensing and sale of their images, likenesses and/or names.
Unreasonable Restraint of Trade - Group Boycott / Refusal to Deal
Defendants entered into a continuing contract, combination, and conspiracy in restraint of trade to effectuate a horizontal group boycott of Antitrust Class Members. Defendants' group boycott / refusal to deal encompasses Defendants' concerted refusal to compensate Antitrust Class Members for use of their images, likenesses and/or names.
Deprivation of Rights of Publicity (Violation of Indiana Code § 32-36-1-1 / California Civil Code § 3344)
Plaintiffs' names, voices, signatures, photographs, images, likenesses, distinctive appearances, gestures, and mannerisms have commercial value. For commercial purposes, Defendants have used and continues to use plaintiffs' and class members' names, images, likenesses and distinctive appearances without their consent.
A fourth claim, though not as prominent as the aforementioned claims, is for breach of contract:
Breach of Contract
Defendant NCAA entered into uniform or substantially similar contracts with class members, imposing specified duties on Defendant NCAA and requiring it to fulfill certain obligations to class members, including a duty to deal fairly and in good faith with Plaintiff and class members. NCAA breached its contracts with class members by, among other things, seeking to accomplish indirectly through its relationship and agreements with Defendant Electronic Arts that which it could not do directly (profit from class members' likenesses).
How the defendants might answer:
While the NCAA/Electronic Arts, Inc. have yet to file an answer, certain arguments can be gleaned from articles, motions and appellate briefs (an interlocutory appeal is pending). Possible arguments include:
The NCAA's recent actions regarding student-athlete images
Despite the recent flurry of lawsuits, the NCAA might soon take action to increase its scope of image use. In January, the Division I Legislative Council sought membership comment on Proposal 2010-26, which, if passed, will change the rules regarding images and likenesses. Under existing rules, companies are generally restricted from using an athlete's name, image, or likeness in advertisements, promotions, or other ventures. Proposal 2010-26 would change this by allowing greater use of student-athlete images/likenesses in a corporate sponsor's promotions. The original proposal as well as any amended versions will be considered in April.
Recent Complaints and Orders
Law Reviews (lexis.com customers can access the articles directly)
Treatises (lexis.com customers can access the treatises directly)
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