College Football, Electronic Arts, and the Right of Publicity: Reality-Mimicking Run Amok
By Charles Bahlert
Manti Te’o sprints out of the tunnel, leading the Notre Dame Fighting Irish back into the second half of the 2013 College Football National Championship Game. Despite trailing the vaunted Alabama Crimson Tide by two touchdowns, the star middle linebacker goads his teammates onward. Inspired by his leadership, Notre Dame rallies from behind to defeat Alabama 34-31 and win the Irish’s first National Championship since 1988.
Of course, as any college football fan knows, this sequence of events is a fiction. In reality, on January 7, 2013, Alabama crushed Notre Dame 42-14, continuing the recent dominance of the Southeastern Conference; Notre Dame failed to live up to its media-driven hype; and Manti Te’o was infamously “catfished” by a young man pretending to be his online girlfriend. However, Electronic Arts’ (“EA’s”) videogame, NCAA Football ‘13, allows players to create the fictional scenario described above on any given Saturday. Thousands of gamers purchase EA’s product and recreate real-life college football matchups in virtual stadiums using virtual players.
* * * * * * *
This Article addresses the failure of sports video game makers to compensate the real-life players on whom their games are based. Such an unauthorized use of likeness violates the players’ right of publicity. This Article therefore proposes a modern legal test—the Reality Mimicking Predominant Use Test—for courts to apply when determining whether a videogame exploits a player’s likeness. Under the proposed test, a videogame receives less First Amendment protection if the game’s predominant purpose is to mimic reality. Where a videogame is less about telling a story and more about mimicking reality, a higher burden is placed on the defendant videogame maker to show a fair use. This standard stems from principles established by the Supreme Court in Zacchini v. Scripps-Howard Broadcasting Company, where the Court noted that “the strongest case for a right of publicity [is] . . . the appropriation of the very activity which the entertainer acquired his reputation in the first place.”
The Fandom Problem: A Precarious Intersection of Fanfiction and Copyright
By Kate Romanenkova
Every few years, popular magazines and news sources seem to rediscover the existence of fan works and fanfiction. Pointing to various online communities and websites that allow fans to share their work, the media marvels at the variety and creativity of this “new” medium, implying that fanfiction is solely a product of the Internet. Fanfiction, however, is not exclusively an Internet phenomenon.
Despite its current popularity and growing presence in our social consciousness, fanfiction existed long before the Internet. The concept of taking popular characters from an existing work of fiction and recreating them in another, by altering their names or the setting in which they exist, is an essential part of entertainment. The popular new Sherlock Holmes television series on the BBC, Sherlock, and the CBS series, Elementary, are two very different interpretations of Sir Arthur Conan Doyle’s famous detective adventures. These two shows represent the essence of fanfiction—taking something that is loved and recreating it from a different perspective. Profit is all that separates the BBC’s Sherlock from the average piece of fanfiction.
The fandom problem—the existence of a growing body of derivative works based on copyrighted content—is only a problem if the derivative work right reserved to authors by the 1976 Copyright Act continues to exist in its current state. To be rid of the fandom problem, some have argued that an exception should be made specifically for fan works under the fair use doctrine. Such an exception seems unlikely, however, given the malleable nature of the doctrine. The better solution to the fandom problem is to revise the derivative work right to exclude fan works and similar creative content from the category of infringing. Allowing people to produce creative work based on ideas of others without fear of a lawsuit would encourage creativity and “promote the progress of . . . [the] arts,” as envisioned by the writers of the Constitution.
Copyright’s Paradox: The Public Interest and Private Monopoly
By Nicholas Ruiz
“[T]here is no new thing under the sun.” Appropriation has been an integral part of human development since the birth of mankind. The Romans imitated the Greeks, Shakespeare build upon preexisting works, and the greatest Renaissance composers copied the melodies of lesser-known composers. Borrowing from existing creations “is at the heart of what we know as Progress.” Even common American principles were built upon foundations of the past. When crafting the Constitution, the Founding Fathers adopted numerous concepts from the Magna Carta, a British document signed by King James in 1215. The ideas of a limited democracy, trial by a jury of one’s peers, the model for Congress, and the copyright system all came from the 13th century document.
Many scholars recognize that there cannot be any more completely new ideas and that all artists are simply “dwarfs standing on the shoulders of giants.” Unsurprisingly, a portion of all copyright activity is derivative. For example, most of our favorite bedtime stories and childhood cartoons were derived from works that had fallen into the public domain. Almost the entire Disney empire, which we have all grown to love, was premised on expired copyrighted works. Although many people know Disney debuted Mickey Mouse in the cartoon Steamboat Willie, most do not know that Steamboat Willie was actually a parody of Steamboat Bill, Jr., a silent film that had fallen into the public domain.
Copyright law’s initial goal was to assist the progression of the arts and sciences by encouraging the dissemination of information. The reason copyright grants authors a limited monopoly in their creations is to incentivize creators to share their works with society. Yet, over the last several decades, Congress has expanded the scope of copyright protection in way that has decreased the availability of information. Given the significance of borrowing in expressive activities and fields of art, the reach of the current copyright regime is too wide. By extending copyright terms and broadening the scope of exclusive rights far beyond that imagined by the Founding Fathers, the current system fails to adhere to the constitutional clause granting Congress the power to protect copyrighted works to “promote science and the useful arts.”
The current copyright system differs from that mandated by the Constitution in two ways. First, the broad scope of the derivative work right undermines copyright’s idea/expression dichotomy and creates uncertainty in secondary artists as to when appropriation will be considered infringing. Second, the statutory extensions of copyright terms do not align with the Constitution and stagnate the public domain. The extensions have thwarted the free flow of ideas and dissemination of information. This Comment proposes a remedy to this problem by examining the nation’s history, copyright systems abroad, and other applicable areas of law.
