Entertainment & Entrepreneurship

Last month the Federal District Court in Northern California answered a motion to dismiss in part of the litigation involving former Arizona State University and University of Nebraska quarterback Samuel Keller against Electronic Arts and the NCAA.  Electronic Arts tried to have its case dropped because it claims First Amendment rights to use the names and likeness of players, based on California case law. In particular, the decision of Kirby v. Sega, 50 Cal.Rptr.3d 607 (2006), found the First Amendment to bar publicity rights cases involving video games. While the appellate court in Kirby purported to apply the transformative test set forth by the California Supreme Court in Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal.4th 387, 391, 106 Cal. Rptr.2d 126, 21 P.3d 797 (2001), it essentially found the creation of a video game sufficiently transformative as to make every depiction protected by the First Amendment:

Ulala is more than a mere likeness or literal depiction of Kirby. Ulala contains sufficient expressive content to constitute a "transformative work" under the test articulated by the Supreme Court. First, Ulala is not a literal depiction of Kirby.. As discussed above, the two share similarities. However, they also differ quite a bit: Ulala's extremely tall, slender computer-generated physique is dissimilar from Kirby's. Evidence also indicated Ulala was based, at least in part, on the Japanese style of "anime." Ulala's typical hairstyle and primary costume differ from those worn by Kirby who varied her costumes and outfits, and wore her hair in several styles. Moreover, the setting for the game that features Ulala—as a space-age reporter in the 25th century—is unlike any public depiction of Kirby. Finally, we agree with the trial court that the dance moves performed by Ulala—typically short, quick movements of the arms, legs and head— are unlike Kirby's movements in any of her music videos. Taken together, these differences demonstrate Ulala is "transformative," and respondents added creative elements to create a new expression.

In Keller, by contrast, the court gave a very thorough analysis for a mere motion to dismiss. Although it cited to Kirby v. Sega once, it did not follow the blanket First Amendment protection Kirby provided to video games, instead sticking with the transformative test borrowed from copyright fair use by the California Comedy III decision. In particular, the Keller opinion suggests that the transformative test will go much further to look at the amount of transformation involved, rather than merely looking at whether the person is interjected into a video game environment.

EA's depiction of Plaintiff in “NCAA Football” is not sufficiently transformative to bar his California right of publicity claims as a matter of law. In the game, the quarterback for Arizona State University shares many of Plaintiff's characteristics. For example, the virtual player wears the same jersey number, is the same height and weight and hails from the same state. EA's depiction of Plaintiff is far from the transmogrification of the Winter brothers. EA does not depict Plaintiff in a different form; he is represented as he what he was: the starting quarterback for Arizona State University. Further, unlike in Kirby, the game's setting is identical to where the public found Plaintiff during his collegiate career: on the football field.

This certainly does not end the question of transformation. Stating that the work is not sufficiently transformative as a matter of law does not mean that a jury might not find sufficient transformation as a matter of fact, based on the evidence - only that the factual question will need to be litigated fully (and at considerable expense).

Undoubtedly this raises the stakes in this case and will likely lead to a very visible battle over blanket first amendment protection for communicative works like films and video games (which have First Amendment protection).

Personally, I favor a blanket rule that communicative works - films, books, publications and video games are exempt from publicity rights; goods, services and advertisements for same are per se violative of publicity rights without written permission; and the transformative test is for tee-shirts, souvenirs and similar items where the primary intrinsic value is the content on the item rather than the item itself. Such a rule would fix 95% of the publicity rights confusion.

Posted by Jon M. Garon at 07:47 PM | Permalink | Comments (0) | TrackBacks (0)

The Apple iPad has finally become official. The 9.7 inch screen provides an expanded platform for iPhone apps and features a proprietary chip selected to move beyond the present state of interface interaction with the Apple  A4 microchip.  The $829 version will have increased storage and 3G wireless connection for a $30.00 monthly fee.

More interesting are the features missing - the camera, the ability to run Flash, and removable storage and battery.

The most important aspect is the ability for the iPad to run the iPhone apps. This makes it a natural extension for the happy iPhone owners. The $30 monthly fee may not make iPhone owners happy to pay the additional charge, and it would make sense for AT&T to bundle service to the two devices. It positions Apple as a much more economically significant competitor to Microsoft then it has ever been before. When configured with an optional keyboard, it makes for a powerful competitor to Windows, something Apple has never before achieved.  Microsoft is trying to play catch-up with its Zune, but absent dramatic leaps in functionality, a Zune phone and tablet will have as much impact as the Zune music and video player has had the past two years.

The market response will be fast and furious. The price will likely be a ceiling on competition. The weight and functionality will also set a very high bar. But Apple is not alone. Amazon's recent decision to add apps to the Kindle will do little to make the single-function book reader into the competition. Microsoft will be trying hard with both Windows 7 devices and Zune compatible devices.

The greatest competitor is likely to be Android (or Android/Chrome) from Google. The platform has its own significant app base, a host of Google tools and of course the Google Book Search repository for the ebook experience.  There are no Andoid announcements yet. Give it a week or two and be prepared for a new paradigm in books and media.

Authors - time to start writing again.

The Android platform may provide

Posted by Jon M. Garon at 04:51 PM | Permalink | Comments (0) | TrackBacks (0)

In a recent post, I discussed the rather anemic FTC report on voluntary parental ratings and suggested that better standards are needed. The FTC has provided a much more pointed report on the concerns for virtual worlds, particularly regarding sexually explicit content in these worlds. The FTC Virtual World report includes the startling finding that "some virtual worlds designed for teens and adults allow – or even encourage – younger children to get around the worlds’ minimum age requirements."

Part of the difference between the two reports stems from the difference between sex and violence - sex can be obscene and is much more the focus of regulation. Violence is somehow more permissible in U.S. content. But sexually explicit material seems to pose a more obvious danger to children, particularly the youngest children. And sexual content comes from peer-to-peer interactions as much as from the creators of content, a more insidious form of abuse for the participant.

The findings, then are not surprising. The companies involved in virtual worlds are less responsive than their motion picture, video game and music counterparts. The voluntary efforts are less effective and more actively undermined by the companies in the field. This is certainly not true of every company and those who do well should be recognized. Parents should know more about their children's online activities and respond to those companies that intentionally cheat.

Ten-year-olds are told by their peers how to get past the controls on Facebook. (I know - it is amazing what the children in the back of the car will say, when the driver just listens without participating.) But the same behavioral advertising tools that allow vendors to know exactly when to send the birthday card seem never to be used to say "are you really three years older than you were when you signed up for the birthday club?"

The tools are available. A parent-centered behaviorial advertising model should be available to protect our children - even from themselves.

Does this sound like a First Amendment advocate has lost his focus now that his children are of that age? Not really. I'm not calling for virtual world police. But I am calling on the advertisers and publishers to give me tools to make my job easier and create presumptions of protection rather than presumptions of predatory conduct.

The default rules need to be designed to protect families; family profiles should enable computers to know who uses machines, so that when an under-age child logs on, the check against the family profile posted by me to my computer stops my child from lying about his age or at least sends me an e-mail asking if this is correct. The FTC also suggests that better language screening tools be employed for these sites and provides more suggestions.

Finally and perhaps most importantly, the 13-year-old line should not become the line of majority. Most of these sites should be adult-only sites. College students do not hang out with high school and junior high school students at dances or at the mall; neither should they do so online. Make sites more age specific. This may not necessarily 'clean up' high school virtual worlds, but it will at least separate out the activities among the peer groups.

More from the FTC:

“It is far too easy for children and young teens to access explicit content in some of these virtual worlds,” said FTC Chairman Jon Leibowitz. “The time is ripe for these companies to grow up and implement better practices to protect kids.”

The FTC surveyed 27 online virtual worlds – including those specifically intended for young children, worlds that appealed to teens, and worlds intended only for adults. The FTC found at least one instance of either sexually or violently explicit content in 19 of the 27 worlds. The FTC observed a heavy amount of explicit content in five of the virtual worlds studied, a moderate amount in four worlds, and only a low amount in the remaining 10 worlds in which explicit content was found.

Of the 14 virtual worlds in the FTC’s study that were, by design, open to children under age 13, seven contained no explicit content, six contained a low amount of such content, and one contained a moderate amount. Almost all of the explicit content found in the child-oriented virtual worlds appeared in the form of text posted in chat rooms, on message boards, or in discussion forums.

The Commission observed a greater amount of explicit content in worlds that were geared towards teens or adults. Twelve of the 13 virtual worlds in this category contained explicit content, with a heavy amount observed in five worlds, a moderate amount in three worlds, and a low amount in four worlds. Half the explicit content found in the teen- and adult-oriented virtual worlds was text-based, while the other half appeared as graphics, occasionally with accompanying audio.

Posted by Jon M. Garon at 08:49 AM | Permalink | Comments (0) | TrackBacks (0)

The FTC recently published its seventh report focusing on "violent entertainment products" that are available to children. The report focuses on the motion picture, music, and video game industries.  It reports generally good self-enforcement of the purchasing guidelines. Of course, at 80%, one of five attempted purchases goes through without objection. Toys-R-Us is singled out for even worse enforcement: "The Commission’s undercover shop found that retailers are strongly enforcing age restrictions on the sale of M-rated games, with an average denial rate of 80%. Only Toys ‘R’ Us lags far behind on enforcement (56%)." So the first lesson of the report is that otherwise savvy tweens who would rather not be caught dead in the Giraffe's den of lame childhood wonder, is that they can at least stop by to pick up the goods other stores won't sell.


The in-store enforcement does little to stop those non-adults with access to online accounts and gift cards to purchase anything they want without limit. The role of the store cashier has changed from that of gatekeeper to the monitor light on a freeway on-ramp. They moderate traffic flow, but will not stop the consumption.

I don't suggest that the non-adult ratings should be anything more than advisory for parent. On the other hand, I disagree with the line of court decisions which suggest that obscene material must be sexual to be obscene. Even under the auspices of the First Amendment, a society can identify that content which is so far beyond the acceptability on depictions of violence that the material is beyond First Amendment protection. This, along with requirements that any such obscenity label, must be fully adjudicated before any police action can take place against the content, should give states the right to declare ultra-violent material as obscene. Like sexual obscenity cases, the actual cases should be rare and the evidence 'beyond a reasonable doubt' because of the potential criminal enforcement.

Without the ability to identify content as obscene, the parental guidelines do little to manage content. They provide some helpful information for our under age and adult consumers. They are like food labels. They make us feel guilty after we have binged, but probably have little impact on what we actually consume unless we individually choose to follow them.

I look forward to next year's report. It is nice to know some things won't change.

Posted by Jon M. Garon at 09:25 AM | Permalink | Comments (0) | TrackBacks (0)