Tony Davis says video giant owes him for using his 1979 persona in Madden ’09
It’s an annual occurrence. Like when the circus comes to town. Only more lucrative. The release of a new version of EA Sports’ popular “Madden NFL” video game.
And just as the circus brings with it a certain amount of mess to clean up and (at least these days) controversy and litigation, so too does Madden NFL. It seems that each new release triggers an inevitable lawsuit by one or more current or former athletes who feel that their rights are being violated by the makers of this video game (or other similar media). So prevalent are these lawsuits that it’s almost impossible to keep track of things, or know who all the players are, without a scorecard. (Fortunately for you, we’ve prepared a scorecard showing where most of the major currently-pending image rights cases stand. Check it out here.)
The list includes suits filed by former college football and basketball players against EA Sports, by former pro football players against NFL films, by current pro football and baseball players against fantasy sports websites. So that’s former pro athletes, former college athletes and current pro athletes suing video game makers, fantasy sports purveyors and filmmakers, in almost every combination. Has this genre of lawsuit finally run its course?
On July 29, Michael E. Davis (a/k/a Tony Davis), a former NFL running back, sued EA Sports for its use of his likeness as part of a “historical team” contained in the 2009 edition of the Madden NFL series.
Tony Davis played six years in the NFL. He was with the Cincinnati Bengals from 1976-1978 and the Tampa Bay Buccaneers from 1979-1981. He claims that EA sports – which posted revenues of $3.67 billion in 2008 and $4.2 billion for fiscal year 2009 – profited from his likeness when it included his 1979 Tampa Bay team as one of 140 “historic teams” in Madden ‘09 (The Buccaneers? We can’t figure it out either).
When it comes to current NFL players featured in its games, EA Sports bothers to represent them by name and provide their video game avatars with characteristics and attributes which are identical to their real life personae. And EA Sports pays handsomely for the right to do so: it has a deal with the NFL Players Union to license those likenesses, a deal that costs EA nearly $35 million per year, if you believe public reports.
But neither Tony Davis nor any of the thousands of other retired players on these 140 historic teams are identified by name because they don’t have a similar agreement. But the digital players on these historic teams have likenesses eerily similar to their real life counterparts: there are real teams (if, that is, you view the Buccaneers as a “real team”) featuring players with the same height, weight, years of experience and physical characteristics as the real life player on that team.
Note that we said “similar”, not “identical”. According to Davis’s complaint filed in the United State District Court for the Northern District of California:
EA attempted to avoid license fees for use of retired players’ likenesses by placing on the “avatar” of each retired player a different uniform number than that worn by the player when he was actually on that historic team. Similarly in some circumstances but not others, EA made certain trivial challenges in a player’s characteristics, such as changing a player’s weight by a few pounds. These changes reflect a calculated and underhanded attempt to avoid having to pay any license or royalty – but nonetheless readily invoke the likeness of the player in the mind of the consumer. In this way, EA has exploited the retired players by using their valuable likenesses and publicity rights.
An example, using Mr. Davis himself:
Characteristic Tony Davis (real life) EA Player Who Looks Like Tony Davis
Position Halfback Halfback
Pro Experience 4 years 4 years
Uniform Number 27 37
Height 5’11” 5’11"
Weight 215 pounds 215 pounds
This situation – where the only substantive change is the player’s jersey number and the absence of the player’s name – is pretty common. But there’s a feature within the game that allows the user to “customize” the teams by editing the rosters to change each player’s name or number.
Mr. Davis alleges that EA has violated his Right of Publicity under a California statute and California common law; he also relies on a theory of Unjust Enrichment. Plus, obviously trying to raise the ante, he is seeking to create a “class” for purposes of a class action lawsuit consisting of approximately 6,000 retired NFL players. The class would be limited to those players who appear in the video game with a height within two inches of the player’s real life height and within ten percent of his real life weight. Davis seeks damages, including actual damages, statutory damages and punitive damages, disgorgement of all profits earned by EA through the use of these players’ likenesses, and attorneys’ fees and other costs.
All we’ve got right now, of course, is a complaint filed in court which offers the most basic argument in favor of the retired NFL’ers. And though many similar lawsuits have been filed in the recent past, none has yet been resolved. So the result here is still very much in doubt. But if you’re keeping score at home (with past results being no indication of future performance, either in sports or the legal world), check out our scorecard to see where we’re at in terms of the major right of publicity cases in the sports world.