Why can’t I use their names?

Discussion in 'Indie Business' started by BlueWaldo, Oct 6, 2004.

  1. BlueWaldo

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    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?
     
  2. Dom

    Dom
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    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.
     
  3. Gilzu

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    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
     
  4. mahlzeit

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    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.
     
  5. BlueWaldo

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    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?
     
  6. Greg Squire

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    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 “Noâ€￾. (At least from the major leagues; the minor leagues might be more open to that as they want the exposure more.)
     
  7. Bluecat

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    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.
     
  8. dan

    dan
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    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.
     
  9. cliffski

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    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*
     
  10. Diragor

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    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/articles/editorials/foxed.shtml
     
  11. Diragor

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    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.
     
  12. Greg Squire

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

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    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?
     
  14. Lerc

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    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.
    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
     
  15. cliffski

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    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.
     
  16. Bluecat

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    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.

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

    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...
     
  17. fusionlab

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    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. ;)
     
    #17 fusionlab, Oct 7, 2004
    Last edited: Oct 7, 2004
  18. BlueWaldo

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    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?
     
  19. mahlzeit

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    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.
     
  20. Bluecat

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    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.

    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
     

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