Here is a sample definition of likeness – name, silhouette, personality, appearance, performance, depiction, portrayal, photograph and voice. It is an integral definition in many licensing agreements where one party hopes to be able to exploit the other party, usually for a hefty fee. What if you were not entitled to just compensation for the use of your likeness by another? On one end, people have a right to control their image and reap a reward when others use it. On the other, free-speech rights under the First Amendment should allow certain uses of likeness without permission in particular instances.
In 2009, Sam Keller, a former quarterback at Arizona State University, filed a class-action lawsuit against Electronic Arts, the NCAA, and the Collegiate Licensing Company. The suit is based on a claim that the Defendants illegally profited by using college football players’ likeness on popular video games without first earning permission to do so. While players’ names are not used in the video games, other parts of their likeness’ are portrayed, including silhouette, appearance, performance, depiction, portrayal, photograph, and possibly even voice. Jersey numbers, height, and weight are identical to the players the video game characters are supposed to represent.
The Defendants make money off of sales from the video games that are created by using the athletes’ likeness. It looks and feels like pure commercial speech. The right of publicity exists for a purpose. The next step in the Sam Keller case is that Electronic Arts must file a reply to Keller’s brief. We will keep you up to date with what occurs in the case.