1. 
   
   Yahoo!’s actions in operating its fantasy football league did not violate any publicity rights owned or controlled by NFL players;



2. 
   
   If Yahoo!’s actions did violate those rights, the First Amendment supersedes that right of publicity; and



3. 
   
   If Yahoo!’s actions did violate those rights, federal copyright law preempts the trademark right or right of publicity by dedicating information used in a fantasy sports games business to the public.

This suit seems almost identical to CBS Interactive mentioned above, as well as C.B.C. Distribution and Marketing Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007), which dealt with similar publicity issues in fantasy baseball. In both of these other declaratory judgments, the courts found that even if the plaintiff did violate defendants' publicity rights, the plaintiff enjoyed a First Amendment right to use the publicly available players' names and statistics that prevailed over any right of publicity. To escape this precedent set in the 8th Circuit, it seems possible that NFL Players may attempt to transfer venue to the Southern District of Florida as the defendants attempted in CBS Interactive (to no avail). Why Florida? In Gridiron.com, Inc. v. Nat'l Football League, Player's Ass'n, Inc., 106 F. Supp. 2d 1309, 1315 (S.D. Fla. 2000), which appears to be the only other case addressing publicity rights and the First Amendment as they relate to the fantasy sports industry, the court rejected the plaintiff's argument that a fantasy football provider had a First Amendment right to use players' names and statistics without a license. This kind of split among jurisdictions may result in a trip to the Supreme Court, so we'll keep an eye out ...

A full version of the complaint can be found here.

IQ Biometrix, Inc. v. Perfect World Entertainment, Inc. et al.
United States District Court for N.D. Illinois, Eastern Division
Case No.: 1:09-cv-03180, Filed May 27, 2009

IQ Biometrix, Inc. on May 27, 2009, filed a new lawsuit against Perfect World Entertainment, Inc., Perfect World Co, Ltd., and Wagware Systems, Inc. for alleged patent infringement regarding two separate patents.

The plaintiff, IQ Biometrix, Inc., provides facial image composite software, marketed under the name FACES, which is used by law enforcement agencies worldwide, including the CIA, the FBI and the U.S. Military.

Defendant Perfect World Co. Ltd. is a China-based online game company and maker of the popular fantasy-based MMORPG Perfect World which offers gamers significant avatar customization and player-created content. Defendant Perfect World Entertainment is a wholly-owned subsidiary of Perfect World Co. Ltd., established in the U.S. in 2008 to localize and publish Perfect World in North America. More info on defendants here and here.

Defendant Wagware focuses primarily on developing software applications for handheld platforms. One of its products, MakeFaces, is a children’s game designed to allow the user to combine different styles of facial features (e.g., eyes, nose, hair) to make funny faces.

IQ Biometrix alleges that Perfect World Entertainment and Perfect World Co. infringe IQ Biometrix’s patent 6,731,302 by providing the online game Perfect World, likely because of the avatar customization the game provides. The ‘302 patent, titled Method and Apparatus for Creating Facial Images, is for a process of creating a facial composites by selecting “basic morphological elements” or facial features from a library of encoded features and merging them into a single synthetic image with proportional components, thus reducing contrasts between the individually selected features. The invention appears applicable to systems used in law enforcement, artistic creations, education, and recreation (such as creating personalized characters in gaming).

Representative Claims 6 & 16 of the '302 patent read as follows:

6. A method for generating a composite facial image, said method comprising the steps of:
a) providing a machine-readable storage medium for storing graphical representations of basic morphological elements, said graphical representations being proportionate to one another and having respective boundaries, the graphical representations of basic morphological elements including skin components around their respective boundaries, the skin components having skin tones substantially similar to one another;
b) receiving user data indicative of a set of data elements, each data element in said set of data elements being associated to a respective graphical representation of a basic morphological element in the machine-readable storage medium;
c) processing the set of data elements to locate in the machine-readable storage medium corresponding graphical representations of basic morphological elements;
d) combining the graphical representations of basic morphological elements located to generate a digital representation of a facial image, at least two graphical representations being combined such that their skin components having substantially similar skin tones meet at a boundary; and
e) displaying the digital representation of the facial image on display means.

16. A method for generating an electronic library of basic morphological elements suitable for usage in a composite picture system, said method comprising the steps of:
a) providing a plurality of facial images;
b) digitizing the facial images;
c) processing the digitized facial images to create a plurality of graphical representations of basic morphological elements of a certain facial image, said graphical representations of basic morphological elements including skin components having different skin tones;
d) applying a filtering process to said graphical representations of basic morphological elements to derive modified graphical representations, the modified graphical representations including skin components having skin tones substantially similar to one another;
e) processing said modified graphical representations to generate calibrated graphical representations, said calibrated graphical representations being substantially proportional to one another; and
f) storing the calibrated graphical representations on a computer-readable storage medium.

Law360, New York (May 06, 2009) -- A former quarterback for Arizona State University has filed a putative class action against Electronic Arts Inc. and the National Collegiate Athletics Association for appropriating and using the images and attributes of college sports players in its popular line of interactive video games in violation of NCAA rules, which prohibit commercialization of college players.

Sam Keller, once a starting quarterback for ASU's and University of Nebraska’s football teams, filed the lawsuit Tuesday in the U.S. District Court for the Northern District of California, claiming that EA video games like NCAA March Madness, NCAA Football and NCAA Basketball violate NCAA rules prohibiting the use of college athletes’ names and images in commercial ventures.