Saturday, July 4, 2009

The NCAA is like Google? Unfairly profiting on the backs of others

Over the weekend, Katie Thomas reported in the NY Times that several college athletes have filed lawsuits against Electronic Arts (EA) over the use of their likenesses in video games. (While the video games don't actually use the players' names, the games utilize the players' numbers, hometowns, height, weight, and other stats. Eventually, a judge or jury will likely decide whether these data points constitute a recognizable "likeness".)

The NCAA has endorsed the games and shares in their profits. At the same time, the NCAA also imposes rules preventing college players from profiting from their own celebrity.

This strikes me as remarkably similar to one of my complaints about the proposed Google Books settlement -- that the libraries, whose work made Google Books possible, get nothing from the proposed settlement. In fact, the libraries weren't even allowed at the negotiating table.

In the same way, the NCAA negotiated deals with EA, allowing use of the athletes' likenesses. And the athletes were prohibited from the negotiating table.

This doesn't seem fair either, does it? Note that I am not critiquing specific details of the deals (I do not know any details of the NCAA / EA deal). I am critiquing the fact key parties in each case were not allowed a seat at the table.

On the issue of fairness, I was recently asked whether some Hollywood movie deals were "fair". If the actor/writer/talent/creator had a seat at the negotiating table, odds are that I would deem the deal to be "fair" -- they had a chance to either negotiate a "better" deal, or walk away from the deal if they didn't like the terms.

Two successful mystery writers dealt with the situation differently. At the time that Sara Paretsky sold Disney the movie rights to her heroine V.I. Warshawsky, Paretsky was quoted as saying she knew she might never see money beyond her advance, and that she would have minimal input on the movie...but that the advance meant she could realize her dream of becoming a full-time writer. On the other hand, Sue Grafton has refused from the beginning to sell the movie rights to her Kinsey Millhone series, because she was afraid of what Hollywood might do to her characters. [Note: I cannot find online citations for these, but my recollections are quite clear.]

Both Paretsky and Grafton had a seat at the table, and they made their own informed decisions. If only the libraries and the college athletes had that same opportunity.

1 comment:

  1. Ken,

    Great post. Frank Deford often makes the same point in his weekly commentaries during Morning Edition. For some reason, I'm having trouble pasting a URL into my comment, but if you go to NPR.com you'll find his most recent essay, "Loathing the Bowl Championship Series," touches on this point.

    Best,
    Leslie C.

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