The O’Bannon Case, College Sports, and Property Rights in One’s Image and Public Likeness

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The college football season is in full swing, and in addition to all the usual questions about notable players and national title contenders (Is Clemson for real? Is Braxton Miller destined for the Heisman?), there are serious reasons this year to wonder about the future of the college game.  This season may well be the last played within college football’s current framework (and no, I am not referring to the end of the BCS and the introduction of a playoff), thanks to a lawsuit, O’Bannon v. NCAA, set for trial next June.  Originally filed by Ed O’Bannon, a former UCLA basketball player, but now including many other former athletes as well as six current college football players, the O’Bannon suit is challenging the NCAA’s use of players’ images and public likenesses as a source of revenue.  The outcome of that case could decide the future of college sports’ current business model – and possibly the NCAA itself.  But for that small group of individuals who are both college football fans and intellectual property geeks (such as the author of this post), the O’Bannon case is also interesting because of its potential impacts on IP theory and policy.

The case originally concerned licensing of images of players to the video game manufacturer EA Sports (one of the current players involved in the suit, Clemson cornerback Darius Robinson, said there was “zero doubt” that Clemson player no. 21 in EA Sports NCAA Football 2012 was him: “That’s me all the way…I don’t have the best hands as a corner, so I always drop interceptions on the video game”).  The suit was expanded last winter beyond just video games; if the NCAA loses the suit, they could be forced to share revenue from TV and other licensing deals with college athletes, thus effectively making college players paid professionals.  The progress of the case, as well as its outcome, is still very much in doubt (as of right now, it hangs on a key decision from a judge on whether the case can proceed as a class-action lawsuit).

Discussion of the case has mostly focused on whether college athletes should be paid (see especially Taylor Branch’s excellent 2011 Atlantic essay).  Comparatively little attention, on the other hand, has been paid to the potential of the case to create a whole new class of property.  The O’Bannon case could – depending on the outcome – expand the set of intellectual property rights, by establishing a precedent for holding that individuals have a default property right in their image and public likeness, and that others cannot profit off the use of that likeness without compensation (and possibly, without permission).  The basic idea is a new variation on an old idea – namely, self-ownership, the notion that we all have a default property right in how our bodies and constituent parts are used.  Locke introduced the notion of self-ownership in Ch. 5 of the Second Treatise of Government (“…yet every Man has a Property in his own Person. This no Body has any Right to but himself”), and it has figured importantly in debates about, for example, the use of human biological materials taken during medical testing for research.

Is the extension of a similar default right to the use of one’s image and public likeness sensible?  Is it plausible to hold that I’m entitled to a cut of the value generated from my image, because I have a sort of original default property right in it?  What does this imply about the nature of property?  Are images of myself the kind of thing that could even be property?  When these questions are taken out of context, it may seem ridiculous to think that my image or my blood cells are something I own.  But both of these sorts of things (and many more besides) are, in our world, potentially great sources of value, and it is their potential to generate value that makes it reasonable to ask questions about whether I have rights that are violated when someone, say, uses my likeness as the basis for a video game character.  The O’Bannon case is about the use of one’s image, and the fairness of profiting from that use without compensation.  Given the impact it will have on the rules about use and compensation, as well as our understanding of property, the case is as worth watching as Saturday’s Alabama-Texas A&M game.

‘Owning Ideas’ is an occasional series on intellectual property, and its effect on media, health care, and culture

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