May 12, 2010, 5:16 PM EDT
The 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.
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