united-states intellectual-property software
Do sports figures control the right to use their name in a game?
<p>In sports game simulations, do real people control the ability to use their name?</p>

<p>I am not talking about their likeness, only their name. So, for example, if there is a game that uses generic figures that do not represent specific people, but give them real player's names, does that require permission? Another example would be a sports statistics program. Imagine there is a sports statistics program or a sports betting game. Does the software designer need to get permission to use the names of real players in his program?</p>

<p>If so, what is the specific law that controls it in the United States?</p>

<h2><strong>Maybe</strong></h2>
<p>The answer varies significantly depending on the US state. In many states such a right will be protected, and in others it will not. The exact degree if protection and the procedures to follow will also vary. But in those states which protect publicity rights, the name alone will often be protected.</p>
<p>Oh, I should mention that news reporting of actual events is protected under the US First Amendment. Reporting the names of players in actual games, and their results does not need any permission. That would cover the sports statistics app.  It might well cover the betting app, although that would face other legal issues because of the regulation of gambling generally.</p>
<p>To return to personality/publicity rights:</p>
<p>In <a href="http://www.agtlawyers.com/_cms/_media/files/resources/articles/2007%20articles/frankpubrights.pdf" rel="nofollow noreferrer">this article</a> Charles F. Morgan wrote:</p>
<blockquote>
<p>The right of publicity is the right of an individual to control the use of his or her persona  for  commercial  purposes.Maryland  is  among  the  clear  minority  of  States  in  which  the  right  of  publicity  is  not  recognized  as  a  property  right  either  by  statute  or  under  the  common  law.</p>
<p>In  1984,  the  Court  of  Appeals  of  Maryland  adopted  the  rule  that  a  person  who  appropriates  to  his  own  use  or  benefit  the  name  or  likeness  of  another may be liable for the tort of invasion of privacy.  More than twenty years later, this  remains  the  only  reported  Maryland decision  dealing  with  the  appropriation  of likeness.  In other States, the right to control the use of one’s name, voice and likeness, the right of publicity, has evolved through legislation or the common law as a property right apart from invasion of privacy.</p>
<p>The  distinction  is  an  important  one.    The  right  to  privacy  is  personal  to  the affected individual and therefore does not survive the death of the individual.  Invasion of privacy is a tort action intended to compensate a living person who is injured as the result of another’s wrongful act.  After a person dies, he or she cannot be subjected to an intrusion into his or her private life.  While the right of privacy dies with the person, the  right  of  publicity  has  evolved  as  a  property  right  that  may  be  transferable  and  capable of surviving the death of its original owner.  At least twenty-eight States have recognized  a  common  law  right  of  publicity  or  have  created  statutory  versions  of  the  right  of  publicity.</p>
</blockquote>
<p>In <a href="https://www.gw-law.com/blog/news-publications" rel="nofollow noreferrer">this article</a>  Neal S. Dongre writes:</p>
<blockquote>
<p>The right of publicity has been defined as the inherent right of every human being to control the commercial use of his or her identity. ...  The right of publicity is based in state law, which create an intellectual property right that when infringed upon is a commercial tort of unfair competition.The right of publicity has been recognized by various states — by the courts through the common law, by legislatures through statute, or by both. ...  Most other states, while not recognizing the right of publicity, do recognize a cause of action based in the right of privacy which, while protecting different interests, may arise from the same factual scenarios as right of publicity cases.</p>
<p>Eight states currently have statutory provisions on the books which encompass the right of publicity. McCarthy at Sec. 6:3. These states are: California, Florida, Illinois, Kentucky, Ohio, Pennsylvania, Texas, and Wisconsin. Id. Ten additional states have statutes which, although labeled as privacy statutes, are worded such that they effectively encompass most of what is known as the right of publicity. Id. These states are: Indiana, Massachusetts, Nebraska, Nevada, New York, Oklahoma, Rhode Island, Tennessee, Virginia, and Washington.</p>
<p>The leading Supreme Court decision in this area is <em>Zacchini v. Scripps-Howard Broadcasting Co.</em>, 433 U.S. 562 (1977). This case concerned a television news station that had taped and rebroadcast an entire 15 second “human cannonball” act performed by Zacchini.  Although the Court’s holding did not turn on the Constitutionality of the right of publicity, the Court treated the cause of action as a viable one and used the term “right of publicity” several times throughout the opinion. This treatment by the Supreme Court led other courts to begin to recognize the common law right of publicity.</p>
<p>There are currently eighteen states whose courts have recognized a common law right of publicity. ... Only the Nebraska and New York courts have expressly rejected a common law right of publicity, although the New York legislature later remedied this rejection by statute.</p>
</blockquote>
