Digital Asset Management
+ First Amendment
June 7, 2013
Read this in 8 minutes
As our lives become increasingly documented by digital means the question of legacy has too become digital. Astonishing amounts of data are piling up in web-based service accounts as the years pile on. Google, Facebook, Instagram, Twitter, Vimeo, SoundCloud, Tumblr, GitHub, YouTube, Quora, Dropbox, WordPress, even your ebooks and iTunes downloads—you name it, at death the rights to the content hosted by or assets acquired through these services are coming closer into question, and it’s a privacy question because these organizations are bound by their own privacy policies as well as common law doctrines and various legislative mandates at both the state and federal levels, e.g. Rhode Island’s Access to Decedents’ Electronic Mail Accounts Act. The issue has been written about for years, but digital wind-down processes are not nearly clearly resolved.
Google has provided individuals with an option, called the Inactive Account Manager, and others are likely to follow suit. After a period of inactivity Google will either delete your account or allow a designated individual access to it. But the real solution to these issues is a testamentary or trust declaration. Relying on company policies constantly in flux, or on laws as slow to change as technology is fast to change, is unlikely to net you the kind of detail you prefer. Many services and states still have no policy on the subject, opting instead to rely on the extension of preexisting legal frameworks. Private sector solutions are rushing to fill the void.
Going the other way now, anonymity is gaining in value. Disposable notes are being offered by One Shares and Burn Note. More significantly, The New Yorker recently unveiled a new privacy system called Strongbox, built in large part by Aaron Swartz, and which relies on the Tor Project infrastructure and is powered by DeadDrop. The digital portals set up for the NSA under the PRISM program sound a little something like Strongbox, actually. The service allows anonymous submissions to the magazine’s reporters. In addition to the obvious privacy implications, the First Amendment implications are as obvious and as important.
An ideal segue to Hart v. Electronic Arts, Inc., a favorite cases of 2013 because it’s at the intersection of media, tech and the First Amendment, and calls on trademark and copyright principles for resolution (note there are also two similar cases under review by the Ninth Circuit, Davis v. Elec. Arts Inc., No. 10-CV-03328, 2012 WL 3860819 (N.D. Cal. Mar. 29, 2012), and Keller v. Elec. Arts, Inc., No. 09-CV-01967, 2010 WL 530108 (N.D. Cal. Feb. 8, 2010)).
Ryan Hart, former star quarterback of the Rutgers University NCAA Men’s Division I football team from 2002 through 2005, brought suit against perhaps the most successful sports video game maker of all time, Electronic Arts (EA), alleging a violation of his right to publicity. Hart was disallowed by NCAA rules from commercializing his intercollegiate career. But EA operates under no such restriction. EA licenses school and team names, logos, uniforms, fight songs, etc., from the NCAA’s licensing agent for its NCAA Football game, but it does not license the likeness and identity rights of intercollegiate players.
Of course, EA has made its name in this space through its ever advancing realism. While players in NCAA Football are not specifically intended to be actual, some bear an obvious likeness to stars like Hart. Here, Hart complained that his body profile, skill set, jersey number, home state, and appearance of accessories like a visor and wristband, were combined in a not-so-generic Rutgers quarterback that too closely resembled Hart.
Hart sued EA in state court for a violation of his common law right to publicity. The case was removed to federal court under diversity jurisdiction. Hart amended his complaint to allege a more specific claim “pursuant to the right of publicity based on [EA’s] purported misappropriation of [his] identity and likeness in NCAA Football 2004, 2005 and 2006.” EA filed a 12(b)(6) motion to dismiss which was converted by the district court to a 56 MSJ favoring EA based on free expression under the First Amendment.
The ruling came up for appeal before the Third Circuit, which balanced the interests underlying the right to free expression against the interests inherent in the right of publicity—a heavy task, indeed. The interest in free expression is nothing short of a core democratic value. The interest in publicity is equally fundamental, as an incentive for labor, i.e. reward from the fruits of endeavor. EA conceded that it violated Hart’s right to publicity, but argued that its right to free expression overpowered Hart’s right to publicity. The court eventually flipped this read, noting that video games are protected expression and that the only question is whether other interests surmount that ever-extant protection.
The court reviewed three balancing tests for resolving conflicts between the right of publicity and free expression: (1) the commercial-interest-based Predominant Use Test (too vague); (2) the trademark-based Rogers Test (too narrow); (3) and the copyright-based Transformative Use Test (just right). Ultimately, the court adopted the Transformative Use Test. The analyses of these three tests are deep and best read in full, but the guiding language was pulled from a California Supreme Court case, Comedy III Prods., Inc. v. Gary Saderup, Inc., 21 P.3d 797 (Cal. 2001), through which transformative use was imported from copyright into the right of publicity context:
Restating its newly-articulated test, the Supreme Court of California held that the balance between the right of publicity and First Amendment interests turns on whether the celebrity likeness is one of the raw materials from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question. We ask, in other words, whether the product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness. And when we use the word expression, we mean expression of something other than the likeness of the celebrity.
This is a straightforward statement, but the Third Circuit also repeatedly came back to the ease of discernment presented by parody. The court often reasoned that if a true fan wouldn’t be satisfied with a depiction, the use is likely transformative, and vice versa. The court simply found that EA’s combined appearance and biographical info too closely resembled Hart and offered no real transformation worthy of First Amendment protection. Furthermore, the context offered EA no sanctuary. The game depicted Hart doing exactly what Hart was known to do—quarterback “with all the trappings of a college football game.”
The most interesting discussion was around interactivity, and whether user customization controls could open the way to a transformative use. The court was unconvinced by this argument, astutely reasoning that:
[f]or larger potential changes, such as a different body type, skin tone, or face, [Hart’s] likeness is not transformed; it simply ceases to be. Therefore, once a user has made major changes to the avatar, it no longer represents [Hart], and thus it no longer qualifies as a use of [Hart’s] identity for purposes of our inquiry. Such possibilities therefore fall beyond our inquiry into how [Hart’s] likeness is used in NCAA Football. That the game may lend itself to uses wholly divorced from the appropriation of [Hart’s] identity is insufficient to satisfy the Transformative Use Test.
The amicus brief led by the Screen Actors Guild gave a specific and colorful application of the interactivity argument relative to default character traits, which referenced the Dalai Lama and the Pope, and which the court found compelling. Interactivity is merely a factor, and is thus neither sufficient alone for nor the sine qua non of transformation.
The final holding was this:
We therefore hold that the NCAA Football 2004, 2005 and 2006 games at issue in this case do not sufficiently transform [Hart’s] identity to escape the right of publicity claim and hold that the District Court erred in granted [sic] summary judgment in favor of [EA].
If EA can’t pay intercollegiate players, and can’t appropriate their likenesses, it may be incapable of offering the realism that users have come to enjoy and expect. One of the court’s more poetic observations strikes at this.
Games such as NCAA Football permit users to recreate the setting of a bitter defeat and, in effect, achieve some cathartic readjustment of history; realistic depictions of the players are a necessary element to this.
Update: September 27, 2013
Electronic Arts is indeed cutting its NCAA lines of football video games, as predicted. Read about that here.
Update: March 3, 2016
The Uniform Law Commission has developed a model act for fiduciary access to digital assets, and several states are proceeding to advance such legislation, including Tennessee, and Florida, while Oregon today became the first state to enact a version of the revised model law.