Why can’t I use their names?

[BlueWaldo]

I just read a thread in the announcements section about a politically inspired game. It seams to be legal to use George W. Bush’s and John Kerry’s name. However if I make a baseball game then I have to pay the Players Union for the right to use their names. Additionally, the union will not allow baseball games to simulate players’ contracts; instead player must be paid with points or something similar.

How can someone stop me from printing their name? Is that not what free speech is about? I don’t have to pay for rights if I write a news article about a baseball game. What is the difference?

[Dom]

Because most profesional sports players participate heavily in 'licensing', whereby there name itself is a brand - hence adopts brand protection. their lawyers will therefore jump on anyone using the name as it is brand dilution etc. etc.

Politicians are not allowed to license their name/image, so they don't seek brand protection.

Legally, there is probably no difference, but sports players will aggresively sue whereas George W probably won't.

[Gilzu]

well, there are couple of causes why its legal:

1. the game is a freeware - the law is only valid if you are making profit from other peoples rights.
2. the game is a parody - you do not need to licence a game if its a parody, just make sure youre not insulting the subjects invoulved. Take "Spaceballs" for example.

also, i think there was a thread or two about that in the ol' dex forums

[mahlzeit]

you do not need to licence a game if its a parody

Making a parody of something, or anything else that would reasonably be considered "fair use", is not a safeguard against legal harrasment. You will be sued if the other people are nasty enough. In practice, the principle of "fair use" only gives you the right to get a lawyer and defend yourself. And going to court costs a lot of money, even if you win.

[BlueWaldo]

So if a third party releases a free roster set for my game that has names of real players that would be ok? What if it has logos and team names?

[Greg Squire]

So if a third party releases a free roster set for my game that has names of real players that would be ok? What if it has logos and team names?

Even a freeware games could get sued. There's issues with "Brand Integrity" and "Brand Dilution". Best course of action would be to get permission, from each team and the league. I doesn’t hurt to ask, but in all likely hood the answer will be “No”. (At least from the major leagues; the minor leagues might be more open to that as they want the exposure more.)

[Bluecat]

It's my understanding that a trademark has to be defended in order to remain your property. So for example if I had a game trademarked as SuperGamePlus and someone copied the name for their game, after I became aware of it I would need to send them a cease and desist letter (and take it further if necessary.) If I didn't defend the name, then basically I am giving them permission to infringe and my trademark becomes worthless.

If someone made a 3rd party mod with trademarked or branded names, they would likely be the ones who get the letter. However, there is nothing stopping the aggrieved party from naming your company in the lawsuit. A lot of EULAs and licences have the "you agree to indemnify us" clause for this reason I believe. I don't know how this stands up in court though.

I'm not a lawyer though.

[dan]

Disclaimer: I am not a lawyer.

But I'll pretend that I am.

You can't use real player names in a commercial game, period. You would stand a very good chance of getting a 'cease and desist' letter with legal threats.

There is little chance that a fan-made baseball roster 'mod' would get a 'cease and desist' letter. The chance of them actually getting sued is virtually nil. No profit being made, too small to be concerned with, etc.

You wouldn't be the first sports indie game with this issue... the early version of Baseball Mogul used 'fantasy' baseball names that were remarkably similar to actual player names. And if I recall correctly, they provided a tool to enabled fans to easily change names and make new files for others to download.

You might try that approach.

[cliffski]

Ive said everything there is to be said on these forums regarding lawyers.
basically they should be hunted down and killed. This is another example why.
I know a guy called James brown. Luckily hes not a soul singer, but if he was, I bet some scumbag lawyer would sue him for using his own name.
*sigh*

[Diragor]

Re: companies not bothering with free, fan-made mods, doesn't anybody remember when the term "foxed" started appearing in gaming news circles, specifically in reference to mods? Several years ago media companies started actively pursuing game makers, including freeware and mod makers, to protect their copyrights. You may not get sued if you're not making any money, but you're likely to at least get shut down if the project gains any kind of significant public recognition.

Edit: here's a nice article I found on the subject: http://www.planetquake.com/features/...ls/foxed.shtml

[Diragor]

There are notable exceptions to what I just said. One huge example is a fairly high profile Star Wars mod for Unreal Tournament 2004 whose creators sought and obtained Lucasarts' blessing. That absolutely amazes me, considering George Lucas's usually vigorous protection of his intellectual property and the fact that they released early versions of this mod just as the very similar commercial game Star Wars Battlefront was about to come out. Maybe they figured the buggy early releases of the mod would make people anxious for the commercial product, who knows. The moral of the story is: ask for permission and you'll either save yourself a lot of wasted work or you'll be able to continue without worrying about lawyers chasing you down.

[Greg Squire]

Also, if you do get permission, make sure you "get it writing". Verbal agreements don't count for "squat" these days.

[Bluecat]

Let's turn it around for a bit. If you owned a valuable intellectual property, if your name was famous and you made a lot of income from it, would you like people using it without your permission, if they made money or not?

[Lerc]

As a vaguely related aside. Today I read Jennifer Government. I kept thinking all the way through that it was amazing the author didn't get sued.

It appears I'm not the only one because he has a faq answer.

People often ask how I get away with using real company names in my fiction. I'm not completely sure; all I know is I keep using real company names and they keep not suing me. But I can think of two possible explanations. One is that my novels are protected free speech, since they're clearly parodies and don't allege actual misdeeds. That is, when I use a real company name, it's just like using a real place name -- and the City of Los Angeles has yet to sue James Elroy. The other explanation is that I always use highly visible, brand-name companies, and suing a comedy writer would be terrible PR.

Anyway it's well worth a read, You'lll be amazed he wasn't sued too.
First chapter vailable online. http://www.maxbarry.com/jennifergovernment/preview.html

[cliffski]

Let's turn it around for a bit. If you owned a valuable intellectual property, if your name was famous and you made a lot of income from it, would you like people using it without your permission, if they made money or not?

somebodies name isnt 'intellectual property'. If anything, its the idea of their parents not them. You dont even chosoe your name, so how you can prevent other people using it is beyond me. Maybe one day someone in china will patent the word 'chang' and then the rest of china will owe them patent rights?
Its insane.
Put a character called cliff harris in your games. Amazingly, I honestly will not sue you.

[Bluecat]

somebodies name isnt 'intellectual property'. If anything, its the idea of their parents not them. You dont even chosoe your name, so how you can prevent other people using it is beyond me.

I should have put an 'or' after the comma. No a name isn't IP as far as I know. But the statement stands. Actors, sports stars, and media personalities all make money by using their names and likenesses. If anyone could come in and use that without paying, then that would hurt their ability to make income from it.

Maybe one day someone in china will patent the word 'chang' and then the rest of china will owe them patent rights?
Its insane.

Also, thats nothing to do with patents. They are completely different things, and a different topic!

Put a character called cliff harris in your games. Amazingly, I honestly will not sue you.

Well, not to be rude but there are probably a few Cliff Harris' out there, and you aint well known outside these circles. But if I put a distinctive name like Arnold Schwarzenegger in a game without permission, unless my name is Arnold Schwarzenegger I'm asking for trouble.

But what would you say if I used Universal Boxing Manager for my next title? After all, it's just a name.

I'll be back...

[fusionlab]

I think in Europe at least, you seem to be able to get away with using a person's name in a game without their permission - but not their likeness. Here's what has led me to this conclusion:

1. Eidos has never been sued for using real player or club names in their mega-successful Championship Manager series of text-only simulations. Both Eidos and Sports Interactive are using real names again in their forthcoming versions, and AFAIK there has never been any mention of licensing (except in the USA interestingly, where the new SI game is being licensed by the official soccer league).

2. Electronic Arts have paid for the FIFA license for their soccer arcade games - presumably because they have animated versions of the characters which are linked to the names? In Konami's Pro Evo Soccer, another arcade game, they've made up false player names where they've been unable to obtain a license.

I think if it's obvious your game isn't selling on the strength of one or more commercial "personalities" that happen to be featured in it, and you definitely do not use their image in any way, then you should be OK.

I hope so anyway, because I'm thinking about using real life names in my forthcoming sim.

[BlueWaldo]

Actors, sports stars, and media personalities all make money by using their names and likenesses. If anyone could come in and use that without paying, then that would hurt their ability to make income from it.

I know why they don't want me to be able to use their name. However, I see it as preventing my from speaking about a comon interest. I don't think people should be able to charge me to say their name. What gives an athlete more rights to his name than I have to mine?

[mahlzeit]

If you are making a sports game with the names of real athletes, you are making money off these names. Without it, you sell less copies. These people have worked very hard to become the athletes they are, so compensating them for this only sounds fair. It's not just the name, it is what the name represents that makes it valuable.

[Bluecat]

I know why they don't want me to be able to use their name. However, I see it as preventing my from speaking about a comon interest. I don't think people should be able to charge me to say their name.

And they don't. Fair use allows this. You can say that a football player sucks or that a certain actor was great in a certain movie without being charged. You can even write a newspaper article or a parody under the fair use provisions. You can show their image on Fox or CNN or Channel 9 News associated with a sports or entertainment report.

You just can't exploit their name commercially without their permission, and rightly so.

What gives an athlete more rights to his name than I have to mine?

In fact, nothing. But let's put this in context shall we?

If Walmart put an ad out saying that BlueWaldo of something street, somethingtown (thus identifying you uniquely) shopped regularly at their stores, then you would have the right to stop them if you wished (and had the money to do so.) In fact you probably have more rights over your identity than a public personality does according to the privacy laws in your own country. Just look at how the paparazzi gets away with violating the privacy of celebrities.

cheers

John

[cliffski]

not true. if i say james brown is a murderer, doubtless lawyers would sue me even though im talking about a different person.
Its this assumption that people own the rights to a name they may share with thousands of people.
arrogance, assumptions... goes well with lawyers.

[Bluecat]

not true. if i say james brown is a murderer, doubtless lawyers would sue me even though im talking about a different person.

I think you're splitting hairs here. If James Brown *is* a murderer and you say so on a public forum, there is no problem. If you (or a newspaper) say James Brown is a murderer and you don't take steps to correctly identify the correct person, or to continue to let people believe it is the wrong person, then you will probably get sued. Newspapers often print corrections or retractions when they realise they have made a mistake.

Fair use doesn't let you lie or slander/libel someone. Also rightly so.

Its this assumption that people own the rights to a name they may share with thousands of people.
arrogance, assumptions... goes well with lawyers.

No. People own their identity.

Case in point. Macdonalds. Macdonalds vigorously defends its trademark. If you create a company called Macdonalds Game Co. then Maccas will come down on you like a ton of bricks. However, if your name was Cliff Macdonald (at least in Australia, I'm not sure about the USA) you would have the right to use that name. That wouldn't necessarily stop Ronald Macdonald from taking you to court though. It just means that he wouldn't win the case. There are caveats to this though. If it appeared that you were trying to leverage of the Macdonalds brand, your legal footing would be shakier. Judges don't tend to like people playing silly buggers with things like this.

If someone identified themselves as you and tried to use your company name and/or trademarks to benefit themselves, wouldn't you be upset?

cheers

John

[ztownsend]

not true. if i say james brown is a murderer, doubtless lawyers would sue me even though im talking about a different person.
Its this assumption that people own the rights to a name they may share with thousands of people.
arrogance, assumptions... goes well with lawyers.

Now you're opening up a whole new area - deformation of character. They'd definately sue you, and they'd probably win... (unless they were a murderer). Try it!

I'm sure there was a case in the UK years ago, of a guy with a surname 'Dixon' who had a small electronics store which he quite legitimately called 'Dixon's'. For you non-brits, Dixons is a large chain of camera/electronics stores. I seem to remember that Mr Dixon got away with it, because he operated in good faith, his store had been open for a good many years, and he wasn't attempting to trade off Dixons good-will. Now that's a bit close to the wall, and Dixons could have won, as there is direct competition.

It really depends on exactly what you are using the name for. Also, there is an added issue if the name is trademarked - then you have no chance - and I'm guessing some personalities may even trademark their name!!

Surely there is a massive difference between using a sports personality's name in a sports sim, where there is an 'obvious commercial benefit' to the game, and free speech, where you comment on a personality, for a reason not directly designed to make money from using the name.

Imagine I write software, and my name is Bill Gates (a different one). What do you think would happen if I called the company "Bill Gates' Software Co."?

Having said that, you could always use their names in a game, and see if they chase you. Then you just change your identity and move abroad!!
Thailand anyone?

[BlueWaldo]

I apologize, I went on a bit of a rant in my last post. My point is this: I am not saying any one endorses my game. But if my game is a baseball simulation game I don’t think it should be wrong to include stats in the game about people who play baseball. (I’m no lawyer so I am not talking about what is or is not legal, just what I think should be allowed.) It is currently not illegal for me to go around telling everyone I know that Barry Bonds hit 50 home runs. I don’t think it is illegal for me to make a webpage that say Barry Bonds hits 50 home runs (as I just did). So why should it be illegal for me to put that information into a database and the have my game read in the information?

[Bluecat]

I apologize, I went on a bit of a rant in my last post. My point is this: I am not saying any one endorses my game. But if my game is a baseball simulation game I don?t think it should be wrong to include stats in the game about people who play baseball. (I?m no lawyer so I am not talking about what is or is not legal, just what I think should be allowed.) It is currently not illegal for me to go around telling everyone I know that Barry Bonds hit 50 home runs. I don?t think it is illegal for me to make a webpage that say Barry Bonds hits 50 home runs (as I just did). So why should it be illegal for me to put that information into a database and the have my game read in the information?

It seems to me a sort of gray area. If you are not using his likeness or name to promote the game, you may be ok. I doubt if a trivia game would get into trouble for doing that, that would be allowed as fair use. But a baseball game... well... it could be argued that a baseball game using the name of a player in any capacity is using that identity to promote the game.

It may not even be Barry Bonds who is worried about it, but the owner of the license to make baseball games with Barry Bonds name. In this case, EA might serve you with a cease and desist order.

Honestly, if you reckon you are in a gray area of the law, then you should consult a law talking person. (I didn't want to use the term that raises Cliffs ire! )

[EpicBoy]

It is currently not illegal for me to go around telling everyone I know that Barry Bonds hit 50 home runs. I don’t think it is illegal for me to make a webpage that say Barry Bonds hits 50 home runs (as I just did). So why should it be illegal for me to put that information into a database and the have my game read in the information?

Because, as previously stated, the game would be generating income. Hence, you're making money off of their name.

If the game was free, you could probably get away with it but you would definitely be in a grey area.

[G_P]

Hello everyone! This is my first post on this forum. I am thinking about working as an Indie and I started to work on my first project. I was really happy to see there is a Indie forum with so much activity.

Now regarding the topic

Where does that stop? What if I am working on a sports title and I use names "similar" to real ones (example: Tigers Forest (similar to Tiger Woods), Carlo Malony (similar to Karl Malone)... What if I give this players ratings that are similar to their "counterparts" in real life (ability ratings, height, age etc...), and then put them in similar teams ( example: just LA instead LA Lakers - or let's say LA Rivers)? What can you do, and what not? Can you combine ( invent names, but work with ratings and statistics that obviously match their real life conterparts?)

[Bluecat]

Hello everyone! This is my first post on this forum. I am thinking about working as an Indie and I started to work on my first project. I was really happy to see there is a Indie forum with so much activity.

Now regarding the topic

Where does that stop? What if I am working on a sports title and I use names "similar" to real ones (example: Tigers Forest (similar to Tiger Woods), Carlo Malony (similar to Karl Malone)... What if I give this players ratings that are similar to their "counterparts" in real life (ability ratings, height, age etc...), and then put them in similar teams ( example: just LA instead LA Lakers - or let's say LA Rivers)? What can you do, and what not? Can you combine ( invent names, but work with ratings and statistics that obviously match their real life conterparts?)

If you're not using real identities I can't see a problem. IANAL.

The question I have is why would you want to?

If you were going to the trouble of creating fictional names, why not just invent fictional statistics as well?

[EpicBoy]

This sort of reminds me of people who go through all sorts of gyrations and antics trying to use (for example) Star Wars IP when their game could easily be applied to anything. Make something else up! It's not that hard... Even use the Star Wars "farmboy come hero" story if you want, just change the damn characters. Geez...

[G_P]

I agree up to a certain point.
When you are trying to re-create some Star Wars story clone it is up to you to create something new. To have a copy of characters, ships, light sabres etc. is probably lack of imagination not only a copyright issue.

When you are working on a sport sim/manager style of game your task is (should be ) to re-create reality.
While it is a great thing to have custom made leagues and players I was under impression that some sport gamers like the fact that they can manage "their" teams, re-create historic matchups...
I believe that between the two same managerial games, one that has an option to also imitate real world teams would sell better (IMHO)

I didn't do any market reasearch on that, though...