Suit Will Define Whether Superfans Can Count as Celebrities

Hard on the heels of a federal district court ruling that video games are “expressive works”, meaning that the makers of the Madden video games are not responsible for compensating celebrity players, retired or active, for using their likeness in a game, comes a suit from some non-celebrity fans alleging similar issues.
↵
↵That’s right, Browns superfan John Big Dawg Thompson (no quotes around the middle name, he officially changed it to Big Dawg) is suing the gaming company Electronic Arts for $25,000 for using a burly dog-masked Cleveland fan in Madden 09 that bears a striking resemblance to Thompson, for the lone exception that it wears a different jersey number.
↵
↵Even if the ruling on retired players holds up on appeal, Thompson’s case should be an interesting one. It would be more difficult to argue that, while Big Dawg is a member of the Pro Football Hall of Fame’s “Hall of Fans”, that he constitutes a celebrity or public figure, which would make the use of his likeness covered by the First Amendment the same way that Jim Brown’s is. After all, he’s not a property of the league able to be obtained through a license with the league or the player’s union. Maybe an exclusive contract with fans is in order. It’s been the key to EA’s continued success, after all.↵