LANSING – Athletes from or living in Michigan were before the House Judiciary Committee on Wednesday opposing legislation they said would dismantle the state’s common law right of publicity by allowing video game makers to use their persona without consent.

While professional sports leagues and teams have protections from other entities or individuals using their trademarks, the players right of publicity falls under state laws. Michigan currently doesn’t have a right of publicity statute, which HB 5964 seeks to address, said sponsor Rep. Pam Byrnes (D-Chelsea).

But associations representing players in Major League Baseball, National Hockey League, National Basketball Association, National Football League and Major League Soccer, said the legislation provides too many exceptions where consent of the celebrity affected isn’t required. Those exceptions include video games, movies, books, songs, newspapers, news broadcasts, and other “expressive works.”

Morris Peterson, a former Michigan State University Spartan who now plays for the Oklahoma City Thunder of the NBA, said video games pose a particular threat because the person who buys the game can essentially manipulate the character based off the real person.

He said players may be involved in efforts to fight crime but could be featured in a game like Grand Theft Auto. Likewise, a video game could be created about lawmakers, like those on the panel, accepting bribes or doing other insidious activities, Peterson said.

Honing a player’s public image is important to that individual, he said, because oftentimes legitimate endorsements pay more than a player’s salary.

But Al Wickers, information technology counsel for the Entertainment Software Association, said the courts are on their side, deeming over and over again that video games are expressive works that are constitutionally protected.

Wickers likened video games to the First Amendment protections garnered to magazines like “US Weekly” or “People,” or movies like “Forrest Gump” or “W,” and songs like “Mrs. Robinson” and “American Pie.”

While no other state outlines video games for an exception to consent specifically, the industry is urging Michigan to do so because of court precedent and to ensure fewer frivolous lawsuits against video game companies, Wickers said.

But there was clearly concern on the committee for giving video games that explicit protection.

“If I buy a magazine with an article about Demi Moore, I’m just reading about her actions. I’m not controlling her…making her shoot a basketball,” Rep. Lisa Brown (D-West Bloomfield) countered.

Rep. Mark Meadows (D-East Lansing), chair of the panel, said while he believes creation of a video game is expressive, using a personality is really just part of the sales pitch.

There was support for the bill among other industries, including the Motion Picture Association and Verizon.

“It strikes a balance between protecting expressive works and protecting the rights of those individuals who may have been violated,” Van Stevenson, senior vice president for government affairs for the film association, said of the legislation.

But like the athletes, the Screen Actors Guild opposes the legislation because the consent exemptions number too many, said Detroit Branch Executive Director Marcia Fishman.

The Michigan Press Association and Google are neutral on the bill, while the AFL-CIO opposes it.

Byrnes said she will continue to work with stakeholders on the legislation, although the exceptions are there because stakeholders expressed the need for them over two years of negotiating.

Meadows said the legislation will come up for a hearing again, but did not specify a date.

This story was provided by Gongwer News Service. To subscribe, click on Gongwer.Com

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