April 2004
Arguello lands a punch on EA Games over personality rights in computer game
The computer games world has again been thrown into the boxing ring over the increasingly important subject of personality rights.
Games publisher Electronic Arts is on the receiving end of some sparring punches from featherweight boxer Alexis Arguello after his image was included in two editions of the game "Knockout Kings".
Mr Arguello was not aware of his inclusion in the game until asked to sign a copy. Since then his son has played the game and felt that the game was not particularly realistic especially since his character allegedly easily beat heavyweight Mike Tyson.
It is reported that Mr Arguello also intends to pursue Nintendo and Sony in light of their inclusion of his image in the Nintendo 64 and Playstation versions of the game.
This is the latest in an increasing list of high profile sportsmen and women who have objected to the use of their image in computer games. The Japan Pro Baseball Association issued proceedings against games manufacturers Konami for the use of their players names and images without permission last year seeking an injunction against the export of the game thereby potentially seriously endangering the commercial success of the game. In reality Konami had obtained a licence from the Japanese Baseball Organization for the use of the player information however the JPBA deny that the JBO had any right or authority to enter into the agreement.
The most high profile case to date, however, has been the judgment where German courts found in favour of goalkeeper Oliver Kahn who objected to the use of his name and image in renowned footie simulation game FIFA World Cup 2002. This resulted in the removal from sale of the game across Germany and compensation payments. Producers of the game EA had obtained a licence form FIFAPro for football games and seem to have believed that all relevant licences were in place from parties including the German Bundesleague in which Kahn plays. Nevertheless the German Courts agreed that Kahn had the right to object to his image being used.
More recently skater Tony Hawk objected to the type of use of his image in computer games as did Dave Mirra over his inclusion in what he termed to be "soft porn" BMX games however to date neither appear to have resulted in successful court action. (See articles elsewhere on this site).
BRIFFA Comment:
Perhaps one of the interesting facts differentiating this case and Kahn from those of Hawk, and Mirra is that Arguello was completely unaware of his inclusion in the game whereas the Hawk and Mirra games were produced under licence prior to publishing.
At present only certain countries accept the existence of personality rights and recognise them in law. In addition to Germany, Spain, Belgium, Italy and France all recognise these rights to some extent stemming from their national constitutions. There is no personality or image right in the UK per se but similar rights are arising through the back door.
It is apparent from so many recent disputes that the rights of an individual to protect their image and name and choose how they use them economically is set to take more of a spotlight in the international legal arena. Celebrity cases such as those involving Eddie Irvine, Naomi Campbell and Catherine Zeta Jones in the UK have all brought into question the value placed on a celebrity's name, image and privacy fuelling the debate for considering implementation protecting both privacy and personality rights.
From a sports perspective this case further serves to reiterate that awareness of the individual as a brand is heightening and although there is no legislation in the UK to protect an image or personality it is only a question of time before consideration is given to the value of the name and image of a sportsman or woman almost equally to his or her value as a player regardless of legislation when negotiating contract terms.