Ibrahimovic vs. EA Sports

Image rights: Intellectual property is (not) to be played with

An experience of playing a sports video game is strongly improved by its authenticity, which is also provided by accurately depicting real world sportsmen and sportswomen. This element is provided through the usage of image rights, which have to be properly acquired.

In late November, a famous football player, Zlatan Ibrahimović took to Twitter, questioning who permitted game developer EA Sports to commercially use his likeness in their popular video game FIFA 21. He called out FIFA and FIFPro in the process, stating that he did not allow any of them to financially profit using his rights. Shortly after, his agent Mino Raiola and another superstar footballer, Gareth Bale followed, the former eventually claiming that another 300 players are interested in proceeding with legal claims regarding the use of their image rights by EA Sports. A question must therefore firstly be asked, what are the image rights and whose are they to give?

The High Court of England and Wales attempted to provide a definition in the 2010 case Proactive Sports Management Ltd v Rooney & Ors [1]:

“Image rights means the right for any commercial or promotional purpose to use the player’s name, nickname, slogan and signatures, developed from time to time, image, likeness, voice, logos, get-ups, initials, team or squad number (as may be allocated to the player from time to time), reputation, video or film portrayal, biographical information, graphical representation, electronic, animated or computer-generated representation and/or any other right or quasi-right anywhere in the world of the player in relation to his name, reputation, image, promotional services, and/or his performances together with the right to apply for registration of any such rights.”

It can be seen that a very broad range of elements, forming one’s personality are included.

Image rights are far from being uniformly concepted across the world. In the European Union, they are generally seen as a personality right, the United States consider it a part of the right of publicity, arising from the concept of privacy, while the United Kingdom employs case law protection in the form of passing off tort.

Image rights have a non-commercial and a commercial aspect and they are primarily held by the individual whose image is reproduced, however other legal entities can also hold the image rights of third parties indirectly. Nonetheless, only the commercial aspect can be licensed.

This is not the first time that similar claims have been brought to light by football players in regard to EA Sports. In as early as 2003, a German court ruled that the likeness of a legendary goalkeeper Oliver Kahn was used without permission in the FIFA World Cup 2002 video game. The Court even prohibited EA Sports from selling the game in Germany, imposing a fine of €250.000 should the order not be complied with.

More recently, in June this year 450 players in Brazil won a settlement of approximately €1 million against EA Sports as a result of a collective action brought by the Union of Athletes of Santa Catarina.

The developer’s reaction 17 years ago seems to be similar to present-day statements, claiming the responsibility lies elsewhere and that the use of likenesses is authorized by FIFPro, a worldwide representative organisation for professional footballers, while also stating it has contractual rights for their use by acquired licenses directly from leagues, clubs and individual players.

FIFPro released a statement claiming it acquires image rights through player unions in almost 60 countries, which are then made available to EA and other clients in the video gaming industry. Its member unions supposedly decide how to best use the revenue generated, either by distributing funds directly among players or providing services in kind such as legal advice, second-career planning, mental and physical assistance. FIFPro also similarly added that its relationship with the video gaming companies complements separate arrangements which the companies directly agree with clubs, leagues, governing bodies and individual players.

EA is however not the only game developer facing legal claims, for example the State Court of São Paulo reached a decision in 2018 against Konami, the developer of the video game Pro Evolution Soccer for an unauthorized use of image rights. [2]

It can be concluded that legal issues concerning image rights are not a new occurrence. However, the ever growing profits in the game development industry also by use of image rights and the connectivity of the world through social media, as showcased by Ibrahimović and others just might play a role in highlighting this topic and increasing the number of legal claims in the future. Even so, it remains to be seen how the recent statements of renowned football personalities will legally play out.

[1] https://www.casemine.com/judgement/uk/5a8ff7b160d03e7f57eb144e [2] https://www.jusbrasil.com.br/processos/184826735/processo-n-1126481-2620168260100-50000-do-tjsp

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