{"id":2012,"date":"2013-10-09T00:11:16","date_gmt":"2013-10-09T00:11:16","guid":{"rendered":"http:\/\/ncjolt.org\/?p=2012"},"modified":"2020-06-04T20:53:59","modified_gmt":"2020-06-04T20:53:59","slug":"the-transformative-test-how-courts-are-still-trying-to-deny-video-game-are-art","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/the-transformative-test-how-courts-are-still-trying-to-deny-video-game-are-art\/","title":{"rendered":"The Transformative Test: How Courts Are Still Trying to Deny Video Game are Art"},"content":{"rendered":"

Tuesday, October 8, 2013, by Matthew Viva
\nAt the end of last month Electronic Arts, the largest video game developer in the world, announced that they would be putting one of their most successful game franchises on hold\u2014maybe forever<\/a>.\u00a0 For the first time since 1997 (1993, if you count EA\u2019s Bill Walsh series) gamers will not be able to purchase a copy of EA\u2019s NCAA Football series from their annoyingly insistent, local GameStop Employee.
\nOf course, the O\u2019Bannon settlement is the most immediate culprit for this demise<\/a> (check out fellow JOLT-ite Catherine Perez\u2019s article for more); but it was just the last, thorny figurative branch EA hit on its way down.\u00a0 The fateful push came a few months earlier, in successive opinions by the Third and Ninth Circuits rejecting EA\u2019s right to expression in their works defeated the right of publicity claims advanced by college athletes for the usage of their likeness.<\/p>\n

When applied to video games, the transformative test effectively punishes developers for the development of realism in their games and assigns liability where a likeness has been recreated most faithfully to its source material.\u00a0 Yet, can you imagine the reverse being applied to movies or books?<\/p><\/blockquote>\n

These decisions, Hart v. Electronic Arts<\/i> (Third Circuit) and In Re Student-Athlete Name & Likeness Licensing Litigation <\/i>(Ninth Circuit), recognized that video games were a protected work under the First Amendment but nonetheless held that EA\u2019s freedom of expression had to be balanced against a student\u2019s right to his likeness.\u00a0 To determine whether the appropriation of the player\u2019s images were kosher, each court set about applying something called the transformative test to EA\u2019s depiction of the in-game avatars of the athletes.
\nIn a general sense, the test evaluates the work as a whole and tries to find sufficient expressive elements which make the depiction the author\u2019s own rather than that of the player\u2019s.\u00a0 The courts look at the alleged likeness in the context of its work and attempt to determine whether the author transformed the image enough to make the likeness his own expression.\u00a0 This kind of analysis looks at whether the alleged likeness was one of many raw materials used by the author in crafting his creation, or whether the author has simply appropriated the celebrity\u2019s image, from their looks to the activities they are known for, and transplanted them into his work.\u00a0 Acceptability is the difference between modeling a character on a celebrity, but placing the character in a wholly unique and fantastic universe (acceptable<\/a>) and digitally recreating a celebrity likeness but placing it in the same setting they achieved their celebrity (not<\/a>).
\nFor a contemporary example consider Commander Shepard, protagonist of BioWare\/EA\u2019s Mass Effect series.\u00a0 The Commander is based on the likeness of Dutch Model, Mark Vanderloo.\u00a0 Bioware has molded Shepard\u2019s appearance to almost completely match that of Vanderloo, from musculature to the scar on his forehead.\u00a0 Yet in any transformative analysis, Shepard would almost certainly be seen as an expression of BioWare.\u00a0 This is because the likeness of Vanderloo has only been used as a raw material in creating the appearance of the Commander; the author has then placed that avatar in the 25th Century and set him to fighting aliens, romancing blue women, and saving the Universe.
\nThe problems with this test are many and I do not have time to get into all of them, but detailed write ups from people much smarter than I can be found here<\/a> and here<\/a>.\u00a0 What bothers me is the clearly disparate treatment of publicity rights in video games from more traditional expressive media.\u00a0 When applied to video games, the transformative test effectively punishes developers for the development of realism in their games and assigns liability where a likeness has been recreated most faithfully to its source material.\u00a0 Yet, can you imagine the reverse being applied to movies or books?
\nUnder this version of the test, punishing an artist for the most faithful depiction of a celebrity he can, could films like The Social Network<\/i> exist without licensure?\u00a0 What about documentaries?\u00a0 Could any<\/i> biography be published?\u00a0 All of these traditional forms derive appeal on the most accurate depiction of their targeted celebrity within the venue he\/she achieved their celebrity, yet courts have never questioned their first amendment entitlements.\u00a0 Are games that much different than these traditional forms that they should suffer increased punishments?
\nThe Supreme Court sure doesn\u2019t seem to think so, ruling in a 7-2 decision that \u201c[l]ike the protected books, plays and movies that preceded them, video games communicate ideas \u2014 and even social messages \u2014 through many familiar literary devices . . . and through features distinctive to the medium . . . . This suffices to confer First Amendment Protection.\u201d\u00a0\u00a0 \u00a0So if they have the same communications as traditional media, are entitled to the same rights, and indeed having even further potential to be expressive through features distinct to the medium, why hold games to a different standard?
\nThis disparate treatment, in a time where games are increasingly trying to tell more legitimate<\/a>, compelling<\/a>, and yes, realistic<\/i><\/a> <\/i>stories, could have even more negative consequences on the $56 billion industry than just one scrapped franchise.\u00a0 How will the application of such a test treat Fantasy Sports games, which derive appeal from precise depictions of an athlete? Or the unlicensed depiction of a sport\u2019s retired greats in-game? Both have attracted these types of publicity suits in the past.
\nNow, as a mere law student I am uncomfortable calling the Circuit Court decisions\u2019 bad law, but I have no problem letting a seasoned professional do it for me<\/a>.\u00a0 In my opinion, the courts\u2019 application of this test plays only lip-service to gaming\u2019s first amendment rights and betrays misappreciation of the medium\u2019s overall artistic merits.\u00a0 The decision, and the franchise it devastated, will only serve to push games more toward a norm of altered realism and fanciful creations.\u00a0 Perhaps into the realms of arcade parody-violence like NFL Blitz<\/a> or cutesy, hyper-fanciful games like Space Channel 5<\/a> (warning: you will never get the time back that you spend watching that).\u00a0 At the very least, the industry will be more hesitant in how they craft their characters.
\nGaming has made great strides from the simplistic days of PONG and Pac-Man to the sprawling<\/a> epics<\/a> of today.\u00a0 Now if only the courts could grow with it.
\n <\/p>\n","protected":false},"excerpt":{"rendered":"

Tuesday, October 8, 2013, by Matthew Viva At the end of last month Electronic Arts, the largest video game developer in the world, announced that they would be putting one of their most successful game franchises on hold\u2014maybe forever.\u00a0 For the first time since 1997 (1993, if you count EA\u2019s Bill Walsh series) gamers will …<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/2012"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=2012"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/2012\/revisions"}],"predecessor-version":[{"id":7567,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/2012\/revisions\/7567"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=2012"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=2012"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=2012"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}