User:BirdsThatSwim/Intellectual property protection of video games

Licensing
A related aspect of video games and intellectual property is the licensing of other properties for use within the video game. This can come in many potential forms:


 * Some games are developed as tie-ins to the release of another property as to help with that property's marketing and promotion, such as Superman 64 which was used as a tie-in to Superman: The Animated Series In other cases, games may simply used the licensed setting outside of the tie-in function, such as in the case of Batman: Arkham Asylum.
 * Many games incorporate existing contemporary music from famous bands and musicians, each which must be licensed individuals. This is common for most rhythm games like Guitar Hero, as well as a common feature in Grand Theft Auto and various GTA clones for music played on an in-game car radio station.
 * Various crossover games bring in characters, settings and other elements from other video games commonly outside of the publisher's IP realm, such as in the case of the Super Smash Bros. series.

This type of licensing tends to pose an issue for the retention and preservation of video games particular on digital download services. Publisher can sometimes secure perpetual rights to a licensed property, such as in the case of Ubisoft with the name Tom Clancy. Otherwise, with limited-time licenses, publishers are generally required to remove the game from sale at the end of that term, though existing owners of the game often still have rights to redownload and use the game as necessary. For example, the Forza Motorsport series includes realistic models of numerous existing car models which are licensed from the car manufacturers. These licensing terms are limited, requiring publisher Microsoft to pull the game from sale roughly four years after release; Microsoft has generally established a development model where as the last iteration of Forza is about to be pulled, the next version, with a fresh start on the car licenses, was released. In one predominate example, Grand Theft Auto IV had to update the game for all digital owners to remove songs on the soundtrack which their ten-year license had expired.

Publicity Rights
The right of publicity is a relatively modern intellectual property right that safeguards an individual's ability to commercially profit from their name, image, or likeness. Issues of publicity rights in video games can arise in sports titles, where developers use the names and likenesses of hundreds or even thousands of individuals to enhance a game's authenticity and appeal.

Publicity rights pose a particular concern when the athletes in question are amateurs. Electronic Arts' NCAA Football and NCAA Basketball (series) titles each used the names, images, and likenesses of collegiate athletes from hundreds of different universities in the United States. Because then-current National Collegiate Athletic Association amateurism bylaws prohibited student-athletes from receiving any monetary or in-kind benefit from the use of their publicity rights, EA included athletes' names, images, and likenesses without providing any sort of compensation to the athletes.

This tension between the NCAA's amateurism rules and student-athletes' right of publicity claims resulted in several lawsuits against EA, beginning with the cases Hart v. Electronic Arts, 717 F.3d 141 (2013) and In re NCAA Student-Athlete Name and Likeness Licensing Litigation, 724 F. 3d 1268 (2013). In Hart, the United States Court of Appeals for the Third Circuit reversed the lower court's award of summary judgment in favor of EA. The appellate court held that, applying the transformative-use test, EA failed to demonstrate that its First Amendment rights superseded former Rutgers University football player Ryan Hart's right of publicity. Similarly, the United States Court of Appeals for the Ninth Circuit in In re NCAA Student-Athlete Name and Likeness Licensing Litigation held that under the transformative-use test "EA's use does not qualify for First Amendment protection as a matter of law because it literally recreates Keller in the very setting in which he has achieved renown."

The Plaintiffs in Hart, In re NCAA, and the later case O'Bannon v. NCAA (2005) later settled with EA to resolve their disputes. In response to litigation costs and uncertainty caused by the lawsuits, EA announced it would cancel future releases of NCAA Football and NCAA Basketball titles. This continued until 2021, when changes to NCAA name, image, and likeness policies allowed student-athletes to personally license and profit from their publicity rights.