Will Jim Brown score yet another victory?

Former NFL star, Jim Brown’s recent lawsuit against Electronic Arts and Sony, highlights the unique challenges that modern day technology presents to our legal system. In his suit, Brown claims that his likeness is being used in the series of Madden NFL games without his permission. Although his name and image are not used in the game, Brown asserts that the “muscular African American player wearing the number 32” on the All Browns’ Team is based on himself. While in the present day, players sign away their likeness rights when joining the NFL, Brown states that video games were not yet invented when he was playing football and that the use of agents was not permitted, so he was never given the opportunity to condemn such usage.

What then is the main issue at hand? Far from being black and white, this issue presents many shades of grey. One of the grounds of Brown’s action is the dilution of his trademark as the All-Time Great Cleveland Browns running back. It seems to me however, that Brown’s allegation of the unauthorized use of his likeness is the contingent issue to be decided on, and the decision upon which the rest of the case will rely. While cases such as Aubry v. Editions Vice-Versa Inc., and Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. deal with privacy and publicity rights, both cases involve the use of an actual image. In this case, there is no actual photograph at issue, but rather the likeness of a human being to a video game character.

The bigger question is, in this day of such technological advancement, what constitutes likeness? In other words, what exactly should Jim Brown have rights over? We know for practical purposes that it cannot be over his muscular African American build. Can it then be his number 32? While in some professional sports leagues, players have been known to have their numbers retired, this is clearly not the case here since there are 9 running backs currently in the NFL wearing the number 32; all of whom also happen to be African American. While Jim Brown may be able to convince the courts in this particular case that the combination of the players’ features in Madden NFL must necessarily be a representation of himself, allowing this type of case to succeed will open up a whole new realm of legal issues. Where will the line be drawn? Will sports players and teams soon be able to sue over their signature plays? Will their sport soon constitute a work worthy of copyright?

While living in an era of such rapid technological advancement provides us with a myriad of opportunities and conveniences, we must remain aware of the many challenges that are posed to our current legal structure, especially in the field of intellectual property. How we, as a nation and legal entity, choose to respond remains to be seen, but the limits of these rights need to be extended with caution