NEWS & VIEWS
Billy Jenks, consultant solicitor to M LAW
Introduction
In the ever-evolving realm of sports and entertainment, the intersection of football and video games has become an important space, offering fans an immersive and dynamic experience. As the popularity of football video games continues to soar, the image rights of football players featured has garnered increased attention. This article explores the current structure of football player image rights within video game content and offers insights into potential developments that may shape this complex landscape in the coming years.
Current Structure
The dynamic nature of football player image rights in video games involves a delicate dance between game developers, football leagues, clubs, player unions and the players themselves. Licensing agreements serve as the linchpin in determining the extent to which a player's image can be replicated in the virtual world. These agreements are often negotiated on two fronts: collective licensing deals between the game developers and (i) football leagues and clubs and (ii) player unions such as FIFPro.
There are only a few instances that players and their representatives directly negotiate with game developers. The leading example being for the front covers of the games.
Collective licensing deals allow game developers to feature entire squads with authentic player likenesses. These deals are incredibly valuable. It is reported that the Premier League agreed a six-year deal worth £488m with Electronic Arts to feature the league’s players in EA SPORTS FC (formerly known as FIFA).
Challenges and Controversies
Players and their representatives are becoming increasingly vigilant in recognising the commercial value of their digital likenesses, leading to more assertive negotiations for fair compensation. Disputes may arise when players feel their virtual counterparts do not accurately reflect their on-field prowess or when they are featured without explicit consent.
In 2021, Zlatan Ibrahimović tweeted: “Who gave FIFA EA Sport permission to use my name and face? @FIFPro? I’m not aware to be a member of FIFPro and if I am I was put there without any real knowledge through some weird manoeuvre. And for sure I never allowed @FIFAcom or FIFPro to make money using me” adding “Somebody is making profit on my name and face without any agreement all these years. Time to investigate”
Gareth Bale replied to Zlatan’s tweet with: “Interesting, what is FIFPro? #TimeToInvestigate” with both players’ agents also wading in and adding further comments.
FIFPro, a global players' union comprising of 66 national member associations worldwide, does not have individual football players as direct members; instead, players are affiliated with their respective national associations and FIFPro holds the mandate to negotiate and sell name and likeness rights for players from member nations, unless there are specific arrangements in place with certain nations.
It’s understood that the English Premier League is one such association that does not delegate its associated rights to FIFPro. Instead, the Premier League secures image rights through agreements with its affiliated clubs, collectively selling licensing rights for video games.
The approach of the Premier League in managing these rights may stem from the UK's distinctive position regarding image rights. Unlike some jurisdictions, the UK lacks a specific legal concept of 'image rights.' Protection for an individual's name, image, and likeness relies on a combination of intellectual property rights, including trade marks, copyright, laws against passing off (‘false endorsement’ claims), and various privacy laws. However, the High Court has recognised and deliberated their existence at length (e.g. in the case of Proactive Sports Management Limited and Rooney which provided the following definition:“ Image Rights means the right for any commercial or promotional purpose to use the Player's name, nickname, slogan and signatures developed from time to time, image, likeness, voice, logos, get-ups, initials, team or squad number (as may be allocated to the player from time to time), reputation, video or film portrayal, biographical information, graphical representation, electronic, animated or computer-generated representation and/or any other representation and/or right of association and/or any other right or quasi-right anywhere in the World of the Player in relation to his name, reputation, image, promotional services, and/or his performances together with the right to apply for registration of any such rights”).
The uproar from Zlatan Ibrahimović and Gareth Bale in 2021 may have been linked to reports of David Beckham signing a multimillion-pound deal in 2020 (rumoured to exceed £40 million over three years) to feature as a special edition player in the then FIFA game. Notably, Beckham, who retired as a professional player in 2013 and is not affiliated with any club or football association, retains all rights to his image and can negotiate independently with EA Games.
For professional football players in the Premier League, the standard FA Premier League contract includes a mandatory clause granting the club the right to use their image both personally and in a club capacity (with a carve-out for a player’s boot deal). These rights can then be sold to EA Games for use in their games. Top players often have additional terms in separate image rights contracts, and some may assign image rights to companies, requiring clubs to contract directly with these entities.
Individuals must carefully understand the terms of any image licence to avoid unintended restrictions on their ability to use or sell their image elsewhere.
Potential Developments
As technology continues to develop, the landscape of football player image rights in video games is poised for evolution. Here are some potential developments that could shape the future:
Enhanced Realism and Personalisation
With advancements in graphics and motion-capture technologies, football video games are steadily approaching a level of realism previously unimaginable. In the coming years, players may demand greater control over how their virtual counterparts look and move, fostering more personalised and immersive gaming experiences.
Speaking with Billy Jenks’ client, GEEIQ’s Charles Hambro said “We are already seeing technology products that consider the personality of a particular individual in great detail, and from that understanding are able to mimic that person. Properly produced, such technology could allow all of us to have our own personal interactions and conversations with our favourite celebrity at any time, at the same time”.
Continuing, Charles added “Imagine not just controlling your favourite player or team on the pitch while you play, as you do now, but being able to discuss in-depth strategy and tactics with Pep Guardiola at the same time”.
Blockchain and NFTs
The integration of blockchain technology and non-fungible tokens (NFTs) could revolutionise the management of image rights. Players might have the option to tokenise their digital likenesses, providing them with greater control and potential revenue streams through the sale of virtual collectibles (e.g. iconic goal celebrations), thereby reshaping the economic dynamics of digital image rights.
Interactive Storytelling and Player Engagement
Future developments might see a shift towards more interactive storytelling within football video games. Players may be actively involved in shaping the narrative of their virtual careers, influencing not only gameplay but also the portrayal of their characters, further blurring the lines between reality and the virtual world.
Footballers and their agents are certainly thinking about it. Recently, in a Guardianinterview, Rafaela Pimenta said this about her client, Erling Haaland:
“The multiples in the gaming industry are huge. In the metaverse, maybe I sell a digital Erling Haaland for €2,000 to 100m people in India, China, Brazil, and Mexico. Maybe we will get to a point where I experience a football game with goggles, which triggers the same emotions as if I were there. You’re really going 3D with the virtual experience.”
“So maybe we’ll sell the football game experience, not only to broadcasters but to individual people who can never afford or find the ticket to the Bernabeu or the Etihad. They can experience the game [on the metaverse] as if they are there. So, when I say one billion I am using multiplicators beyond the physical.”
Supporting this, more and more footballers are taking steps protect their names as trade mark registrations. Keeping with Erling Haaland, he recently filed a UK trade mark application for his name across a wide range of goods and services, many of which relate to computer games, including the class 45 service of “licensing of computer games”.
Threat to Collective Licencing
As the value attached to image rights increases and is greater realised, players, especially those with leverage, may insist their image rights are not automatically licenced in their current form. Instead, they may retain greater reservations over the licence, which could pose a threat to the collective powers such as FIFPro.
While the video game makers will wish to avoid negotiating with each player, we may start to see (more) individual negotiations taking place.
Conclusion
The intersection of football and video games is a dynamic space where technology, commerce, and the love of the sport converge. The structure of football player image rights within video games is poised for significant evolution, responding to the changing demands of players, advancements in technology, and emerging trends in the digital economy. Clearer regulations, transparent negotiations, and innovative technologies will all play crucial roles in shaping the future of this fascinating aspect of the gaming industry. One thing is for sure – the fusion of football and video games is an ever-evolving journey with exciting developments on the horizon.
Oliver Fetiveau, Partner M LAW LLP
Despite the widespread discussion of its perils, which depending on who you ask range from ‘it may increase unemployment to’ to ‘it will kill us all’, AI is not going anywhere.
The role of AI within the creative industry, and what its impact may be on the world of copyright, is particularly interesting. With the right AI engine, you could instruct it to ‘create a song which sounds like the Smiths, with lyrics in the style of Bob Dylan, sung like Taylor Swift’. Similarly, you could instruct the right engine to ‘write a 90 minute screenplay, which is a cross between the Goonies, and Paw Patrol’.Of course, whether the product of such instructions would be any good is up for debate - purists will say there is no replacement for the human touch – but given the progress made in such a short period of time, it is not inconceivable that within 10 years AI will be producing creative works which are indistinguishable from the human product – at a fraction of the cost.
With this in mind, logic and market forces would suggest that the music majors would be rushing to cull their roster, and the film studios would happily be avoiding issues with writers strikes by dispensing with their services altogether? Of course there is no replacement for live music, so this would appear to provide some security to musical artists (despite the marvel that is Abba ‘Voyage’ – that’s a legal can of worms for a future post perhaps), but certainly the writers were sufficiently concerned at the threat to their livelihood that assurances as to the usage of their work by AI were a key feature in the recent strike negotiations.
However, I can think of two significant reasons why – legally at least – there is no substitute for the human creator in the creative world.
1. AI’s Source Material
A pantheon of best-selling writers, including George R R Martin, the almost mythical creator of Game of Thrones, and airport thriller maestro John Grisham, are suing OpenAI, creators of Chat GPT, for breach of copyright. Briefly the argument goes that their copyright was used without permission – in an act of ‘systematic theft on a massive scale’– in the process of training the AI to be smarter. Given that the act of training the AI requires a copy of the original work to be made, the case for infringement appears to be made out: UK law currently provides an exception to such copyright usage – known as text and data mining – where it is for non-commercial reasons. It is difficult to see how this exception could cover Chat GPT, and whilst the UK government briefly considered broadening the remit of the exception to encompass commercial usage (in order to place the UK at the forefront of AI development), earlier this year it abandoned these plans.
With liability established, assuming that OpenAI uses an enormous volume of different copyright texts to train its AI, quantifying the loss felt by an individual author would not be straight forward, but presumably the case is not being brought by such wealthy individuals for financial reasons: it is about establishing the primacy of the author, and preventing the unauthorised infringement going forward. At first glance, the case looks to have legs, and the impact of an adverse decision impacts upon the viability of ChatGPT being used as a tool to create ‘original’ works.
So with that in mind, if you were a studio executive helming a project with a budget of 10s or 100s of millions of dollars, would you want the spectre of a copyright claim lurking in the background, if you decided to use ChatGPT in the writing process?
This issue is not confined to the written word: the French collection society, SACEM, has formally opted out of the ‘data mining’ exception provided by European Law – the effect being that its permission must be sought for controlled copyrights to be used by AI engines.
2. Whose line is it anyway?
One of the basic principles of copyright law – much to the distress of the selfie monkey – is that non-humans cannot be the first owner of copyright material (and certainly would not have standing in a court of law to enforce such copyright). So let’s say a music producer used AI to create the Smiths/Dylan/Swift hybrid, not only would he face the same issues in point 1 above (assuming that a music AI program would have ‘copied’ and processed the works of the artists in question to create the hybrid song), but even if those issues were surmountable, could it really be said that he/she owns the work generated? And if that producer doesn’t own the copyright, then who does?? Not any of the Smiths, Dylan or Swift (though query if Swift might have a false endorsement claim). Would it be analogous to an orphan work – similar to where the owner of a copyright cannot be located – in which case King Charles could be sitting on a bona vacantiagold mine…? At first glance, the solution looks to lie in section 9(3) of the CDPA 1988, which makes provision for authorship in instances of computer-generated works of copyright:
"In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken".
Unfortunately, on closer analysis, the identity of the person ‘by whom the arrangements necessary for the creation of the work are undertaken’ is by no means clear-cut: arguably it is the person who gives the instruction to the AI engine; it is the person who created the AI engine; and it is those artists whose works have gone into training the AI engine, all at once. The CDPA would appear to point to a clear case of joint authorship – which gives credence to those claims lodged by the authors and SACEM alike.
Of course being able to demonstrate ownership of a copyright work is vital not only to monetising that work, but also to being able to take steps to enforce the rights in that work (should the hit song itself be plagiarised further down the line). There are three possible solutions:
Create detailed instructions to the AI, which themselves would attract copyright protection as being sufficiently novel and original and created by a human: the more detailed instructions given to AI, the more likely those instructions will provide the basis for a protectable copyright – not unlike issues surrounding format.
To use AI to produce the initial draft and then to amend it, essentially creating a new derivative copyright work which is protectable.
To keep quiet and hope that no one realised you ever used AI at all (ill-advised).
Until the legal position surrounding AI and copyright is established, relying on AI and ditching the human touch represents a legal risk which may be too much for the average movie or music exec -or insurer looking into chain of title – to stomach.
Matthew Higdon, Partner M LAW LLP
Tony Blair said last week (Sept ’23): “Never mind geopolitics, the big real-world event is generative AI – it will change the way we live, we work – it’s going to change everything…”
Blair’s “greatest challenge to lawmakers” is, by extension, also the greatest challenge to lawyers. Certainly, Ed Felton at Princeton[1] forecasts this as very bad news for the profession; the recent report puts ‘Legal Services’ at the top of his list of 20 global industries most “exposed” to next-generation AI Language Modelling.
So, what do the AI machines themselves think? I asked ChatGPT to answer the title question and after some GCSE waffle about Shakespeare, the helpful GPT-4 bot concluded:
“In the context of AI, it’s essential to understand that AI is a tool created and controlled by humans. In short, AI is unlikely to “kill all the lawyers”. Instead, it is more likely to complement their work and help them become more efficient and effective in their roles.”
Phew! – that’s reassuring on both counts. HAL[2] is my servant after all and is not planning to wrench the pen out of my cold dead hands, quite yet…(hang on – but what if HAL’s double bluffing..?).
Given the pace of recent development, the impact of AI technology is difficult to predict with any precision. Since November 2022 when Microsoft backed OpenAI’s GPT-4 model, the speed of development has been staggering with global law firms clamouring to embrace CoCounsel, Lexis+, Harvey (geddit!?) and other newly suited machine learning applications aimed at the Law. Of course, there are opportunities to make huge savings in both time and costs. Menial tasks will be a thing of the past – no more boxes of disclosure to trip over or all-nighter warranty drafting sessions – it will all be done reliably and effortlessly in the blink of an eye by Hal and their super smart cohort.
But will it? What about the PI/insurance implications of pure AI output? Or is that in turn entrusted to another bot to determine and safely weigh the inherent risks – in a closed loop? What of the ethical considerations and the impact not only on client confidentiality but on client confidence in us as professionals? Will generative AI ensure that our output is better or safer – with the reduction in risk and cost being passed on to our clients? Whilst ultimately that is a real possibility, in this rapid development phase, we should be questioning of its claims and vigilant as to its shortcomings. My iPhone is a clever and reliable bit of tech, but occasionally its ‘predictive’ text function can decide unilaterally to sign off, “All the vest…”. Which does beg an interesting question; where does that fault rest? Is it entirely mine for simply becoming overly reliant on predictive text – or does the Objective-C or Swift programmer bear some responsibility for the shortcomings in the code on the basis that they ought reasonably to have known that the output phrase ‘all the vest’ is particularly unlikely ever to constitute anything other than pure nonsense.
The obvious point here is that we have to be entirely confident in the output of our work, however it is created. In a recent US case[3], a court imposed sanctions on two New York lawyers who submitted a legal brief that included six fictitious case citations generated by an artificial intelligence chatbot. In ‘respectful disagreement’ as to the judge’s determination of bad faith, the law firm stated: "We made a good faith mistake in failing to believe that a piece of technology could be making up cases out of whole cloth…". In the UK, the Master of the Rolls Geoffrey Vos called for some caution and review in the use of AI[4] :
“One can envisage a rule or a professional code of conduct regulating whether and in what circumstances and for what purposes lawyers can: (i) use large language models to assist in their preparation of court documents, and (b) be properly held responsible for their use in such circumstances”, adding, “Those will be things that the existing rules committees, regulators, and the new Online Procedure Rules Committee… will need to be considering as a matter of urgency.”
Lord Justice Birss, an experienced IP judge called ChatGPT ,“jolly useful” with “great potential” for summarising areas of the law – whilst also underlining the need to check its output[5]. Jolly useful too if you want to pass the Bar Exam in the US, where GPT-4 was used to score in the 90th percentile, beating many would be human lawyers in multiple choice[6]. Whilst human lawyers are only human, trust, judgement, confidentiality, strategy, and psychology will continue to play a crucial role in the services we provide; AI is a long way from duplicating those traits or fulfilling our legal counsel role.
In the mid ‘90s, I arrived as a trainee on day one at Clifford Chance to find a huge, brand new PC on my desk. The partner I shared with looked up and said something like, “No idea what you think you’re going to do with that…” And he was right; I did have no idea. But it turned out to be quite useful - and three months later, an identical machine arrived on his desk.
Doubtless we will learn to use this new technology constructively, in the same way as we did the old. There are obvious opportunities associated with generative AI and the use case for research, reference or even as drafting tools is clear. Nonetheless, as we are currently in the beta phase we should beware AI’s ‘intelligent’ moniker; garbage-input will always result in garbage-out. Perhaps we should develop a better understanding of ‘what’s in the box’ before we have the confidence to place anything of true importance within in it – never mind swearing an oath on its output.
That same partner also taught me the most valuable, enduring legal maxim:
“checkit, checkit, then checkit again…”
[1] How will Language Modelers like ChatGPT Affect Occupations and Industries? Ed Felton (et al) 2023 https://arxiv.org/pdf/2303.01157.pdf
[2] Apologies to Stanley Kubrick and ‘2001: A Space Odyssey’
[3] https://www.reuters.com/legal/new-york-lawyers-sanctioned-using-fake-chatgpt-cases-legal-brief-2023-06-22/
[4] https://www.legalfutures.co.uk/latest-news/mr-regulators-and-courts-need-to-control-use-of-chatgpt-in-litigation
[5] https://www.theguardian.com/technology/2023/sep/15/court-of-appeal-judge-praises-jolly-useful-chatgpt-after-asking-it-for-legal-summary
[6] https://law.stanford.edu/2023/04/19/gpt-4-passes-the-bar-exam-what-that-means-for-artificial-intelligence-tools-in-the-legal-industry/
Author - Freddie Besant, September 2021
In an incredibly short period of time a varied, complex and in some cases valuable ecosystem of ‘Non-fungible tokens’, or more simply ‘NFTs’, has emerged. The attention NFTs has attracted so far mostly relates, as this article will explore, to the artistic and collectable use of NFTs. This is largely attributable to the eye-watering sums being paid for punks, penguins and rocks. As with cryptocurrencies there seems to be a commonplace binary reaction: either to dismiss out of hand as a soon-to-pop bubble or fervently support as the future of finance / art / gaming / gambling. The truth is probably somewhere in-between: however it is reasonable to assume that as a technology and an asset NFTs may well be around for some time. Indeed, increasingly they are being considered by established brands and those with valuable IP catalogues as a means to create something new out of the old. It becomes interesting when you look beneath the artwork on the face of any NFT and examine the position from an Intellectual Property perspective.
But first, what exactly is an NFT? There are of course more detailed and technical explanations available elsewhere; however, in essence, an NFT is a unique token hosted on a blockchain (most commonly on the Ethereum network but also on a host of other smart-contract ‘Layer 1’ platforms). Some NFTs are single editions (i.e. only one exists); others are part of a limited edition of a series (e.g. 1 of 10,000). Each NFT can be in-built with an endless variety of characteristics as a part of its ‘smart contract’, including its reference to an artwork but also to more practical concerns such as royalties payments in primary and secondary sales.
The ‘non-fungible’ part is an economic term that can be best explained by analogy: if I were to lend you a £10 note I would be perfectly happy to accept repayment by way of any other £10 note. However, if I were to drop my child at nursery I would absolutely not accept any other child at the end of the day. So, the £10 note is fungible and my child is non-fungible. Alternatively consider that the Mona Lisa is non-fungible but the postcards sold in the gift shop at Le Louvre are fungible. It is this distinction that gives some insight into why people might value certain art-centric NFTs as they do: any major work of art will derive its value partially on its aesthetic appeal but mostly from its provenance (i.e. the identity of its creator) and its scarcity (i.e. there is only one ‘Sunflowers’ and only around 900 paintings by Van Gogh). A Van Gogh forgery may well have the aesthetic value, but it will not have the provenance. Similarly each NFT is completely unique and, by virtue of the decentralised blockchain network it exists upon, it is possible to prove beyond any doubt the scarcity and provenance of each NFT.
The obvious and most often commented legal observation regarding NFTs is that the purchase and sale of any NFT artwork, absent any agreement in writing to the contrary, does not entail the assignment of the underlying work. So, all things being equal, a purchaser of an NFT does not then own the copyright in the artwork, which is retained by the author. What then is a purchaser buying? The answer is the unique token built on whichever particular blockchain within which a copy of an artwork is hosted.
This brave new world is not without its questions. For example, what are the terms of the licence to use such artwork that is granted to any purchaser. This is akin to the world of physical art: the purchase of a painting as a chattel does not necessarily confer the right to exploit the copyright in that painting by merchandising. One would assume there would be some limited right to copy the artwork – the most common use of an NFT image is to then use this as an avatar on social media – but what else? Recently Alexis Ohanian, the founder of Reddit, sported a pin displaying the CryptoPunk he owned whilst attending the Met Gala. The IP in CryptoPunks is retained by LarvaLabs, but presumably the licence Ohanian holds extends far enough to create this pin. What would happen however if he then sought to sell similar pins (or mugs, mouse mats, you name it) commercially?
Another important factor is the requirement for a licence of the underlying copyright in order to create an NFT: of course, it is not open to anyone to exploit someone else’s intellectual property in the form of an NFT, and in the event of a successful drop, could damages be payable on an ‘account of profits’ basis – which risks being somewhat punitive? And what if an individual’s likeness were used in the creation of an NFT: there may be no issues as to copyright, but would a ‘false endorsement’ claim arise?
There are no clear answers to these questions and ultimately it would be of no surprise if the courts were eventually asked to determine at least some of them. What is clear is that these issues should be considered closely by anyone contemplating a launch of any NFT series, especially where valuable IP and brand image rights are to be incorporated.
-Freddie Besant
The BBC’s on-line news service reported recently how, following the refinement of new digital techniques, product placements may soon be added to classic films; indeed, it suggested that no filmed footage was immune from this, and that the music industry, badly affected by both declining CD sales and Covid restrictions on live performing, might embrace the chance to gain revenue from product placement.
Older readers might also remember the clever 2005 commercial issued by Volkswagen for its then new Golf GTI; this featured not only a re-mix by Mint Royale of Gene Kelly’s recorded performance of “Singing in the Rain”, but also a remastering of the dance sequence, using masks and digital techniques to impose Gene Kelly's face on the actual “breakdancing” performer.
Aside from the obvious copyright clearances that would be needed to re-sequence or change audio tracks and video footage, there are other, perhaps more difficult, areas of clearance. The Guardian reported in 2005 on the production team’s need to persuade Gene Kelly's widow that the commercial would be faithful to the famous scene from the 1952 film of Kelly dancing along a rainy street.
The BBC’s article reported that, for instance, older musical groups could make new money by agreeing to the digital addition of branded items to their old music videos; or even the later replacement of one branded product appearing in a video with a more recent version of the item. Or new design clothing could be added without the group actually having to wear it or to re-film the video.
It reported on one singer who had agreed with a brewery company that it could add the brewer’s bottles and logos in the singer’s music videos.
Perhaps producers of these “commercials” should be a little cautious: many artists restrict the use or association of their names and likenesses in their film contracts in certain product areas, such as tobacco, firearms and alcohol. Producers would need also to tread carefully to avoid a potential claim for false endorsement or - in certain territories - infringement of image rights.
And let’s not forget our old friend “moral rights”. Film directors (and performers) have, inter alia, an integrity right – that is the right to object to the derogatory treatment of their work or performance. Would John Landis or Michael Jackson’s Estate be happy with the digital introduction of product placement into their 1983 “Thriller” music video? Indeed, would they be happy for it to be re-sequenced to advertise a new car?
-Peter Coles
April 2021
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