Shakespeare was thinking about roses, but his question is of contemporary relevance: is our understanding of a thing conditioned exclusively by its name, or does it encompass its function and attributes as well? Jim Brown would argue that function prevails over form.  A retired NFL player, Brown is suing EA and Sony for the unauthorized use of his likeness in the video game Madden.  The fictional character in dispute is a muscular, African-American who wears the #32 jersey and plays for the game’s All Cleveland Browns Team.  Jim Brown was #32 for Cleveland Browns in the 50s. 

Since video games were not yet invented when Brown signed his employment contract, he could not have bargained away his right to have his likeness used for commercial purposes by Madden.  Even assuming that his contract contained an all-encompassing clause, it would be unfair to deprive him of monetary compensation for the use of his likeness when his younger colleagues, active in the NFL, are rewarded collectively for their endorsement of the video game. To avoid age discrimination, it would be more appropriate to compensate retired players along with active ones, like the creators of All Pro-Football 2K8 did. 

Sony is likely to resist Brown’s claim for trademark infringement and dilution because the game does not mention Brown’s name.  The commercial value of the game player #32 does not rest, however, in its purely denotative meaning (a player wearing jersey #32), but in the connotative meanings that buyers would associate with that player (speed, strength, abilities of Brown).  The physical resemblance to the actual persona of Brown further substantiates the claim that buyers would link the person to the game character.

Even if US trademark legislation[1] does not specifically address likeness to a real person, Jim Brown is not without relief.  In the case of celebrities, physical likeness has commercial value.[2]   The right of publicity and privacy prevents one’s image and likeness from being commercially exploited without permission or compensation.[3]  In Ali v. Playgirl,[4] Mohammad Ali argued successfully that the drawing of a black man sitting in the corner of a boxing ring with the caption Mystery Man and an accompanying verse referring to the figure as The Greatest were clearly identifiable with him.  A precedent in the same jurisdiction, the Ali case is relevant and useful to Brown’s claims.

Furthermore, Sony is also liable under the UDTPA for deceptive trade practices because the game character generates a likelihood of confusion with Brown.[5]  The low standard of proof is very advantageous for Brown – no evidence of actual confusion is required; proof that players could reasonably associate Brown with the game character suffices. [6]   

Given the strong commercialization of the game, it is unlikely that the court will find the likeness to Jim Brown an instance of fair use by Sony.  Moreover, since in the 50s players were forbidden to have legal representation in contract negotiations, there is strong evidence of an unequal bargaining power.  Sony’s taking advantage of the legal vacuum for football players with respect to video games in the 50s evidences unjust enrichment and bad faith.  Equity can and should help Brown.