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Michigan may pass a law that kills players' rights to video game revenue

May 12, 2010, 5:16 PM EDT

MLB2K10.jpgThe State of Michigan has a bill winding its way through the legislature that would, if passed into law, allow video game manufacturers to use ballplayers’ names and images in video games without their consent, against their will and without any compensation.

The bill is called “The Right of Publicity Act” (text here) and, as so many laws are these days, it’s rather euphemistically named, because it kind of kills that which it purports to protect.  Specifically, one’s right of publicity, which is a legal concept that deals with the commercial exploitation of one’s name, likeness, voice or personality, and generally keeps companies from slapping famous people’s faces on their products all willy-nilly.

This right is also why those who make video games involving major league sports must get permission from the individual players — or, more commonly, their unions, which have been delegated the rights by individual players — to use names and likenesses.

Why was the centerfielder for the All-Stars named Guy Jose in the old Commodore 64 game “Hardball Baseball”? Because the Accolade video game company didn’t want to pay to use a real ballplayer’s name. It’s the same reason why games that do have some real players’ names and likenesses use a phony names if, say, the real player isn’t a member of the union like the players who crossed the picket line in 1994, or in Barry Bonds’ case due to his refusal to grant the union his publicity rights for such purposes, choosing to go out on his own.

This Michigan bill, however, takes those rights away by specifically exempting video games from right of publicity laws.  This means that if this law passes, a Michigan-based video game manufacturer could, if it were so inclined, put Evan Longoria in its games, slap his face on the cover of the box and sell the thing even if Longoria objected.  And they wouldn’t have to pay him. To be sure, Michigan is only one state, and it isn’t a state that has a booming video game manufacturing industry.  But right of publicity laws are creatures of the states, not the United States Code, and in those cases states tend to copy each other, if not try to outdo each other.

You have to figure that the MLBPA is strongly opposed to this law, but I don’t think you don’t have to be a ballplayer to find this troubling.  People should be able to control how their names and likenesses are used (or not used) in commerce, and for that reason, this law should not be passed.

If this subject motivates you like it motivates me, contact Pam Byrnes, the bill’s sponsor and tell her you think it’s a bunch of baloney.

And if it does pass? Well, at least we can find someone to make a video game with her as the main character. 

  1. Merkle Boner - May 12, 2010 at 5:30 PM

    Are you implying that this is a constitutionally protected right? As much as I think this law shouldn’t be passed, I think the word “right” is thrown around way too much these days. I understand your argument and agree that it’s wrong to throw someone’s name and face on your product without his consent, but if the democratically-elected state representatives want to pass this law then they can. Having just written a paper on Griswold v. Connecticut and taken a final in American Constitutional History(worst. class. ever.) I felt inclined to put my education to some use and strike up an argument with a liberal lawyer.

  2. YankeesfanLen - May 12, 2010 at 5:36 PM

    One must question why, with the many challenges the state of Michigan faces, we have the state legislature worrying about these sort of things. As pointed out, video game manufacturing must be minimal in this state, and I don’t think that President Lincoln or Antoine De Lamothis-Cadillac complained upon their likenesses being used by the mostly now decrepit Big 3.
    A study on the efficiency and effectiveness of state governments (itself a beauracatic nightmare) should be demanded. Can’t help but think that there must be a revenue enhancement scheme behind this through licensing fees or fines.
    But before we start in Michigan, let’s shoot some fish in a barrel by doing New York and New Jersey.

  3. Craig Calcaterra - May 12, 2010 at 5:55 PM

    It’s not a matter of federal law, so no, I don’t think it’s fair to say that it’s a matter of Constitutional Right (I’ll field arguments to the contrary, of course; I just don’t have one off the top of my head). That said, just because something isn’t a Constitutional right doesn’t mean that it’s not a right of some sort, if for no other reason than accepted practice and custom. It also doesn’t mean that changing the status quo — even if it’s perfectly legal to do so — is a good idea.
    I don’t like the law, and my distaste for it is not dependent upon it being some inalienable right.

  4. mike in MN - May 12, 2010 at 6:03 PM

    I don’t think people should be able to use my likeness in a video game, but can they use my stats, can they use my name? After all, any site that hosts fantasy football leagues does just that. What’s the difference in your mind, Craig, between the two?

  5. jwb - May 12, 2010 at 6:11 PM

    I’m thinking of something like Punch Out with Can of Spam Pam replacing Glass Joe
    Or maybe something involving caricatures of her family members, chainsaws, and something like this

  6. oompaloopma - May 12, 2010 at 6:14 PM

    This reminds of the NBA games without Jordan. However, my opinion is it sucks when only one game franchise gets the naming rights. To me all games should have the equal opportunity to create a game with real names. I think Michigan is trying to do the right thing but it does sound shady. I just think competition will always make a better game.

  7. Kevin - May 12, 2010 at 6:36 PM

    If I had to guess, I’d imagine that this law is the Michigan legislature’s attempt to preempt right of publicity lawsuits by college students seeking to challenge the licensing agreements between the NCAA and companies like EA Sports.

  8. Brian - May 12, 2010 at 6:51 PM

    More like it’s a not so subtle attempt at luring video game manufacturers (especially EA) to relocate to Michigan by shielding them from lawsuits. Michigan did the same thing to lure Pfizer to Ann Arbor in the 1990s.

  9. Paul - May 12, 2010 at 6:53 PM

    I’m making a video game where you remotely control drones from a base in the US that has to complete a set of mission objectives. If this bill passes, I’ll register it in Michigan, and slap Obama’s picture on it.

  10. DK - May 12, 2010 at 7:17 PM

    Reminds me a bit of this old piece of news. Where would the president stand on this issue?

  11. Charles Gates - May 12, 2010 at 7:30 PM

    That was my take. What does Michigan get out of it? In so far as their auto industry isn’t maintaining jobs, are they making an effort to make ‘The Mitt’ a place to go in order to get tech jobs? I get this concept. The notion that I’d be living in Delaware if it wasn’t a banking friendly state is preposterous. I’d appreciate some local Michigander insight here regarding if any other initiatives carry this sort of slant.

  12. Old Gator - May 12, 2010 at 9:41 PM

    Craig – well, if I were some smartass young lawyer looking to make a name for himself (ie, my son in a few years), I’d invoke the “implied right to privacy” from Roe vs. Wade. Boy, would that uncork djinns all over the goddamned place. I probably wouldn’t win but after about three months of filing, everybody would know my name and I’d’ve gained ten million bucks worth of publicity.
    Another thought: can ballplayers patent or trademark their names or images? In which case, of course, the Michigan law would run afoul of Federal law. Whoopee, pass the popcorn! We can run this as a double feature with the McCourt divorce.

  13. RamboDiaz - May 12, 2010 at 9:55 PM

    Pfft… Guy Jose. Couldn’t hold a candle to the Champs’ (Jake?) McCall.

  14. Craig Calcaterra - May 12, 2010 at 9:58 PM

    Pepi Perez could always strike McCall out with his screwball. If not — if McCall hits one out — I always go to a position player to throw a “fat pitch.”
    Best game ever. Have the music in my head right now.

  15. J. McCann - May 12, 2010 at 11:59 PM

    While I can see the dangers of this law, as is, becoming the law of the land, from a selfish point of view I want the college video games to have the real names in there. If the stats are historical fact, shouldn’t the name of the person who produced those stats also be historical fact?
    There has to be a way to move us along to a fair solution, and not just fair to the powerful leagues, unions and game companies.

  16. RamboDiaz - May 13, 2010 at 8:55 AM

    Totally agree, Craig. Hundreds of childhood hours spent on the ol’ C-64 playing Hardball, and not a minute of it considered wasted. I actually used to track stats for the individual players in a little notebook and I remember the day that I finally realized that lineup position controlled the speed/power attributes of the players.
    After that point, I had a lot of fun messing with friends’ heads by batting Morra, the catcher, leadoff and having him steal bases at will.

  17. Joey B - May 13, 2010 at 9:31 AM

    “It’s not a matter of federal law, so no, I don’t think it’s fair to say that it’s a matter of Constitutional Right (I’ll field arguments to the contrary, of course; I just don’t have one off the top of my head).”
    As Gator said, I think it is certainly a privacy issue. I’d also think it was a property rights issue. Is not one’s image and name their property? I don’t want to get too heavy-handed with it, but if the company is going to make money off of you, they owe you a cut.

  18. Young Gopher - May 13, 2010 at 1:19 PM

    Anything to take more money from those evil rich people.

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