It's Our Right, And Our Freedom?

It’s our right, and our freedom, and we want it now!

In the spring of 2014, after brokering with the CLC (NCAA’s licensing arm), Real Sports Game Tech (RSG) developed and published the first interactive college lacrosse videogame, titled “NCAA Lacrosse 2014.” After its release, however Rutgers varsity student athlete, Charles Smith, noticed there was an avatar that resembled him. From Smith’s team issued number down to his exact red and black wristband and exact height and weight, RSG copied a digital persona of Smith without ever consulting him. RSG believed that the First Amendment right to do so. Our First Amendment and ‘Right of Publicity’ do not protect the use of college student athlete personas in videogames without proper compensation for its commercial exploits, similar to RSG’s misuse. Preventing others from profiting from their athletic endeavors, the athlete’s ‘Right of Publicity’ grows from our most basic rights of privacy and ideology that individually we have the right to reap the rewards of our own ventures. Just as in the court cases of Zacchini vs. Scripps Howard Broadcasting, Ryan Hart vs. Electronics Arts, and Keller vs. EA, the plaintiffs fought and successively received their financial from such capitalization. In 1977, the Supreme Court was dealt a case that for the first time incorporated both the First Amendment and ‘Right of Publicity’: Zacchini vs. Scripps-Howard Broadcasting, a case that involved a performer by the name of Hugo Zacchini and his right of consent. Zacchini’s act entailed shooting himself out from a cannon, one that very few at that time had witnessed. Covering this event at fair was a local TV reporter, who recorded Zacchini’s routine from the start to the end. Zacchini objected vehemently citing that this video could tarnish and exploit his reputation and this broadcast would damage his public relations. Once brought into court, Zacchini alleged to the grand jury that this unlawful act by the reporter was a ‘misuse in conduct of the plaintiff’s professional property’ and that this was a commercialized act… without his consent.’ Agreeing with Zacchini, the Court added that, ‘the First and Fourteenth Amendments do not immunize the media when they broadcast a performers entire act without his consent.’ Giving more power to future plaintiff’s ‘right of consent’, especially in the management of such media, in cases like Smith vs. RSG. From Zacchini’s case and several following its likeness, the courts have created a new legal test to help athletes avoid such scenarios. The ‘Transformative Test’ one borrowed from a California Supreme Court ruling, focuses on whether the facts of the athlete are used to create an ‘avatar’ or if they are borrowed from creative elements to create a new expression; one that RSG had failed to accomplish as its persona was, if not a replica, an avatar with almost all of the same characteristics as Smith. The ‘Right of Publicity’ serves to protect the commercial exploitation of one’s likeness by another. In the Keller Case and Hart Case, the two courts applied the Transformative test to EA’s “ NCAA Football” game and its use of two quarterback avatars that would have violated Keller’s and Hart’s ‘Right of Publicity.’ Through Keller’s case which focused on the appearances of players, Hart’s focused on the game in a much larger vision, including the stadium. However form the court’s inquiry, even if hart’s digital avatar existed, to support EA, it had to have been adequately “transformed,” which it had not. Similarly right down to his height, weight, and jersey number, Sam Keller was also acquitted with the rights of compensation to which the transformation was not adequate enough to support EA. Thus setting a precedent to support Smith in his fight with RSG, who without compensation exploited Smith’s athletic ventures, all the way down from his height and weight to his preference of a red and black wristband. However, as history has shown,

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