EA Sports NCAA Football 2010

I wrote two long comments on this on May 8 which you can look up if you’re interested. The key statute in California is Civil Code section 3344, which says in part:

“Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without such person’s prior consent … shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages.”

There was a relatively recent case called Christoff v. Nestle USA, Inc. (2007) 152 Cal. App. 4th 1439. The jury was impressed with plaintiff’s case (although the Court of Appeal was less impressed):

“The jury concluded as follows: (1) Nestlé knowingly used Christoff’s photograph or likeness on the Taster’s Choice labels for commercial purposes without Christoff’s consent; (2) Prior to 2002, Christoff did not know and should not have known or reasonably suspected that his photograph was being used for commercial purposes; (3) Christoff suffered $330,000 in actual damages; (4) The profits attributable to the use of Christoff’s photograph or likeness were $15,305,850; (5) The damages for the common law appropriation claim were $330,000 and for the quantum meruit claim were $15,635,850. The trial court subsequently granted Christoff’s motion for attorney fees. Nestlé appealed from the judgment and the order awarding costs and attorney fees.”

There’s money to be made here, legal brethren. Go sign someone up.

If your were publically known, and they took your likeness, used your statistics, and then sold that to make money, you should be compensated.

If the video game was just the UCLA team without clearly identifying the UCLA players and using that distiction to sell the game, I would be fine with it.

But as is, it seems without some additional compnsation (that could be additional meals, housing allowance, whatever) to the individuals and teams included in this game, I think the players are getting ripped off.