Marc Edelman


When Electronic Arts Inc. (Electronic Arts) launched its video game series NCAA Football in June 1993, the available technology limited developers to crafting avatars that looked like faceless figurines. Today, however, advancements in digital technology have enabled developers to create “virtual players” that strongly resemble their real-life counterparts. For example, in NCAA Football 12, the avatar that represents University of Florida running back Chris Rainey possesses Chris Rainey’s actual height, weight, skin complexion, and hair style. In addition, both Chris Rainey and his virtual counterpart wear the same jersey number, visor, gloves, and sweatbands.

Recently, Pulitzer Prize-winning journalist Taylor Branch criticized video game publishers for failing to pay for the use of college athletes’ likenesses. According to Branch, failing to pay for college athletes’ likenesses not only leads to windfall profits for video game publishers, but also transforms college athletes into a “profit center” for their business partner, the National Collegiate Athletic Association (NCAA).

At the core of intellectual property law, there lies a well-established principle that “if you create something, then that something is . . . yours to exploit.” Based upon this principle, courts have generally disallowed the unlicensed, commercial use of celebrity likenesses. Nevertheless, courts have failed to protect the publicity rights of Division I college athletes. Instead, they have created a First Amendment loophole to circumvent college athletes’ rights. This Article argues that despite First Amendment concerns, courts should protect college athletes’ publicity rights in commercial video games.