Cover Songs and Video Games

I am listening to an album of cover songs (the one pictured above) and thinking about how great they can be.  Sara Watkins singing Late John Garfield Blues by John Prine is beautiful and it creates something wonderful while paying homage to the original.  The whole idea has me considering the originality and its necessity, or lack thereof, in the creative process.  The other thing that has me thinking about this issue is video games, or rather, a lawsuit about video games.  A former Arizona State Quarterback has sued EA Sports regarding prior versions of their NCAA football game which used the accurate numbers and information of college players.

The case raises 1st Amendment questions about the use of likenesses in video games and other mediums.  What is it about an expression, video game or otherwise, which qualifies it as protected speech? Video games have already been determined to be the kind of creative expression covered by the 1st Amendment.  So why does this use of a college player's likeness seem so unjust.  I have no good answer.  My problem with this is likely related to Greg Ostertag.  That's the big man up there.  When Ostertag was in college at Kansas, a college basketball mecca, he already had his own family and lived on campus in family housing.  The digs were barely basic but probably what most people would consider acceptable for an amateur athlete in school on a scholarship.  Fine.  Except that while Ostertag and his family were handling their meager existence, the KU store was selling out of Ostertag jerseys, t-shirts and dolls (yes, dolls).  Here was a school, a public institution of higher learning, profiting from the likeness and efforts of one of their student-athletes.  They were not the first or the last to do so.  I know that schools make money from the television broadcasts, etc. of their successful teams, but the Ostertag thing did not seem right to me.

Same thing goes for the EA case.  We can certainly understand that a video game is a creative endeavor, but can't we weigh how creative.  Aren't the EA  sports games more commercial than creative.  It's seems unlikely to me that the 9th Circuit will split hairs betwixt video games and apply some kind of creativity sniff test.  And I understand that is probably the correct decision because we do not want courts drawing fine distinctions about what is creative and what is commercial when so many mediums are both creative and for commercial gain.  However, just like the Ostertag dolls, something about it just doesn't feel right.  We will see what the 9th Circuit does with the case and whether freedoms trump fairness.  Stay tuned for a case update.

Good Radiation (public radio rap)