The 9th Circuit Court of Appeals recently issued a ruling on May 2,
2011 on whether EA Sports and the NCAA owe former Nebraska Quarterback Sam Keller and former college football players royalties for portraying their image and likeness in the popular EA Sports NCAA Football game franchise. This ruling may have a major impact on Hollywood's and other industries' ability to depict public figures going forward. The court granted EA's motion to dismiss Plaintiff's claims for failure to state a claim. The court found that the Plaintiffs had failed to adequately allege in its claims "(1) that EA participated in a price-fixing conspiracy with use of their images, likenesses and names; and (2) that EA participated in a 'group boycott refusal of the deal' conspiracy for us of their images, likenesses and names." The court granted the Plaintiffs leave to amend to plead facts that would show that EA agreed to participate in the alleged conspiracies.
I encountered a similar legal issue in 1994 when I incorporated the members of the 1969 Mets into "Miracle of 1969 Enterprises" to celebrate the Miracle Mets 25th Anniversary. There were many companies that were commercially capitalizing on the players' images on t-shirts, plaques, trading cards and other products. The players never received any compensation. Since the players were scattered all across the country, there was very little they could do about it at the time.
Once such company was Garan Industries. For years Garan had produced a very popular t-shirt with a picture of the 1969 Mets on the front of the shirt and the names of the players on the sleeves. Right to Privacy laws in many states (including New York Civil Rights Law Section 50) prohibits the use of an individual's likeness for commercial purposes without consent. Under my direction, twenty members of the 1969 Mets, including Art Shamsky, Bud Harrelson, Tommie Agee and Tug McGraw, sued Garan. Garan had claimed that the picture celebrated "team identity" thereby not entitling individual players to any compensation. However, Justice Martin Schoenfeld ruled in Shamsky v. Garan Inc. that "these players have the right to commercial exploitation of their individual identities, even if collectively these identities may be somewhat less valuable than the identity of a greater, more memorable, whole." The case was eventually settled for a six figure cash settlement. Shamsky v. Garan remains an often quoted right of publicity case.
One advantage of nostalgic players incorporating (which I have done repeatedly over the years for members of championship teams and players that share a memorable accomplishments) is that it affords them an opportunity to protect their publicity rights and control their collective destiny when it comes to licensing, sponsorship and endorsements. It also affords potential licensees and sponsors an opportunity for one-stop shopping to secure the valuable collective rights of the members of the group.
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