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I know that real player names cannot be used in videogames unless the authorization (generally very expensive) has been given by the holders of the rights (players, teams etc.)

as explained here and here. There is a discussion here about possible sources that can be consulted in order to figure out whether you are infringing any copyright issue, but it does not say anything specific about my problem (at least as far as I understood it, given my poor comprehension and expertise on the matter).

my question is very simple: is there any rule that determines the amount of difference (in characters, sound, length, phonological features, whatever) from a real name to a fictitious (or fake) name in order for the latter to be considered really fake?

For example, if I created a football videogame in which there is a strong offensive midfielder that has Cristiano Ronaldo's features (with respect to characteristics, statistics etc. not physical appearance) how could I call this player to avoid copyright infringement?

Cristian Ronald? Cristo Romaldi? Christiano Ronnaldo?

there was a famous release of ISS PRO (football game) employing fake names - here's the list - that were very similar to real ones.

Is there a specific rule/law that says which is good and which is not?

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DaniPaniz
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    It's not about copyrights but more about personality rights and trademarks (many celebrities trademark their name). – Philipp Jul 05 '16 at 15:57
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    If you do decide to create "original" names, then I can suggest using this: http://www.fakenamegenerator.com/order.php I had a friend who was making a football game and used it exactly for this reason - generate a bunch of names, then use them for players. I've also used it in the past for NPCs in tabletop RPGs - if the players show interest in an NPC, I had a spreadsheet of these pre-genned and I'd just pull a name on the spot. – VLAZ Jul 05 '16 at 18:32
  • Keep in mind a player's likeness might be covered as well as their name. The same applies to others outside of sports such as actors, politicians, and even regular people. Slightly changing a name of someone and keeping them in the same professional field is a pretty obvious use of a players likeness. Depending on your use you might be covered as an exception of free expression. But it would be risky to rely on. – Bacon Brad Jul 05 '16 at 19:05
  • What if the famous real name were Jack Smith? – Hagen von Eitzen Jul 05 '16 at 21:38
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    As @Philipp says, this is nothing to do with copyright, but rather is about personality rights. The extent to which they exists differs by jurisdiction. Using fake names plausibly might get you off the hook, either because some statute or case law explicitly declares it to be so or because the court thinks it conveys to a reasonable gamer that the players depicted do not endorse your use of their identities... or it might not. I would counsel strongly against taking the word of people on a game development site about the law - ask a lawyer. – Mark Amery Jul 05 '16 at 22:05
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    I know this sounds harsh, but I really mean this in the nicest, most caring way possible: the fact that you even assume that this has anything to do with [tag:copyright] shows that you really, really, really, REALLY have no clue, and should really, really, really, REALLY get a lawyer, because when it comes to legal matters, having no clue is really, really, really, REALLY dangerous and really, really, really, REALLY costly. – Jörg W Mittag Jul 06 '16 at 00:12
  • @Vld thanks for the great suggestion and link, I'm trying it right now. – DaniPaniz Jul 06 '16 at 11:51
  • @baconface it's really interesting what you write about likeness, and scary. So I guess it's even more difficult how to define whether likeliness of real entities is exploited without paying for personality rights.. – DaniPaniz Jul 06 '16 at 11:51
  • @Jörg W Mittag , yes you are right, I have no clue about legal issues and the difference between copyright and personal right. However note that there was no tag defining "personal rights", which means that this topic is not really well documented. And yes, you are right I should consult a lawyer :) – DaniPaniz Jul 06 '16 at 11:51
  • yet @baconface in the article you posted they cite cases about the use of "pictures" or specific information about real people. I don't think you can really claim that Cristiano Ronaldo owns the right of the likeliness of having a great left-foot shoot or a speed of 95/100. What probably would fall within this principle is to use the real statistics of a player in the game. Furthermore, if I make a "fake league" with teams that have players with features that are very similar to the ones of a real team, but different names, I think it would be really difficult to point out the similarity – DaniPaniz Jul 06 '16 at 12:05
  • @DaniPaniz If you or any player of your game could even guess who a player or team was based off, then it may be too similar. – mbomb007 Jul 06 '16 at 14:58
  • @DaniPaniz Likeness applies to anything that makes them alike. This could also be name, role, behavior, and not just physical appearance. – Bacon Brad Jul 06 '16 at 17:17
  • I wonder if asking a question like this on a public forum could end up being used as evidence that you were intending to infringe? – psr Jul 06 '16 at 18:13

6 Answers6

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I'm not a lawyer, this is not a legal advice site, this opinion is offered as is. You should consult with a lawyer to have a definitive answer.

There are no specific rules that govern this.

The ultimate decision will be done by a judge in a court.

But you will not be able to get to that point.

What's most likely to happen is that the FIFA's legal team will send you a letter asking you to do whatever they want (it can range from a smooth 'change the names', to 'take down your game from the stores and give us all money made from it', to 'cease all game creation activities', etc).

They can send you that letter because you don't have money to defend against it in court. This would have cost them only 1000$, but it will be enough to scare you. Legal battles can be long and extremely expensive. They'll assume you don't want to go that path because they have more money that you do to prove them they're wrong.

In any case, it can cost you a lot of money, either in lawyer fees to defend yourself in court, or in money you'd have to pay them as 'compensations'.

I'd create original characters and not get inspired by real players.

0x0000eWan
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Vaillancourt
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  • interesting answer. I understand you are not a lawyer but you are clearly way more informed than me. So, if I may ask more, if I'm sued for using names that according to the judge resemble too much the real names protected by copyright, and I'm willing to modify them immediately, can I still incur in a big fine? (I suspect yes) – DaniPaniz Jul 05 '16 at 14:29
  • @DaniPaniz What's most likely to happen is that the FIFA's legal team will send you a letter asking you to do whatever they want because you don't have money to fight in court (take down your game, change the names, cease all game creation activities, etc), and then give them some money because you caused damages to them or something. This will have cost them only 1000$, but that'll be enough to scare you, because you know they have more money to win against you if you think that they're wrong. – Vaillancourt Jul 05 '16 at 14:37
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    @DaniPaniz if you get to the point where you're in front of a judge, then it's going to be up to that judge to determine what kind of penalties to impose on you. Sure, the judge might merely order you to modify the names, or he might order that your entire software now belongs to the other party, or anywhere in between (depending on the limits of judicial power in the particular jurisdiction). Best to never enter a courtroom in the first place. – Dan Henderson Jul 05 '16 at 17:41
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    Remember that in most legal systems the looser pays the lawyers (reasonable) bills. Which may be calculated based on the value of the item discussed. Expect to pay - not a fine, but cost. – TomTom Jul 05 '16 at 19:49
  • I'd add to this that the copyright/trademark rules are slightly different for critique and, more relevantly, satire. That's why comedy shows get away with impressions of famous people, companies, and institutions. So a game where you attract players with the quality of your team hair stylist/tattoo artist and where continental players gain experience points in 37 different ways of taking a dive could get away with more. But; that might not be the game you want to make. And most important of all - I'm not a lawyer either. – Grimm The Opiner Jul 06 '16 at 07:19
  • @DanHenderson : IANAL, but do you actually know of a case where all rights have been exclusively transferred to the offended party? Sounds quite implausibly excessive to me, even in jurisdiction where a rights' transfer is normally allowed. – mikołak Jul 06 '16 at 10:50
  • @mikołak no; if I did, I would have probably posted a full answer. My point was really just that what you're willing to do may hold little or no weight with a judge, as they have no obligation whatsoever to factor that in. – Dan Henderson Jul 06 '16 at 11:52
  • what really really runs me crazy is that a) there have been games in the past where fake but similar names to real ones were used, so I guess these guys sort of found their way through (although it was Konami so maybe they have very good lawyers). b) There are a lot of very not-famous and relatively small games for Ios and Android apps using real names. I can't believe they gave milions to teams and players in that their grossing cannot be so big to justify such an expense.. any idea what they did? – DaniPaniz Jul 06 '16 at 11:55
  • @DaniPaniz: Konami has a large legal department and can easily fight its way through a court case. Together with the mere similarity of names, this makes "sue Konami" a risky affair. The other issue is that lawyer costs are scaling with the amount in dispute. If your game sees minimal sales, the amount in dispute is low. The rights holder (FIFA in this case) won't bother to sue. They will wait till you "show up on the radar", i.e. the amount in dispute is (or can be blown up to be) significant. You might not even be able to pay the lawyer long enough to see a judge before you go bancrupt... – DevSolar Jul 06 '16 at 13:21
  • (ctd.) The rights holder is fully aware of this. That is why they are waiting for significant amount in dispute. They do not want a court case (which they might still lose, setting precedent). They want you to fold and settle. It's the same for file sharing cases, patent infringement etc. etc. -- if they can stick a big number to it, you will see your case decided by your wallet, not the judge / the law. IANAL, of course, just someone who had his case decided by his wallet... – DevSolar Jul 06 '16 at 13:23
  • @DevSolar I was waiting for this. The confirmation of my suspicion that a lot of people are even violating personal rights and copyright because they know that the income they generate is too small to be a "significant amount". E.g. I can't conceive how these developers , this, and even this, which is pretty famous with respect to online football games can afford to pay millions to FIFA, players and teams for the personal rights. Am I right? – DaniPaniz Jul 06 '16 at 14:01
  • with respect to the comment above, of course I'm not accusing anyone, I'm just trying to understand how things work and thank to all the interesting comments and answers to my question my understanding on the issue has been improving a lot. – DaniPaniz Jul 06 '16 at 14:10
  • @DaniPaniz Honestly, it's like speeding - if you are on the highway you'll see people constantly violating the law, often flagrantly, with no apparent cost or remorse. If you speed - a little or a lot - you'll probably get away with it many times, possibly for years on end. That doesn't mean that you aren't violating the rules, and that if you are caught one day the penalty might be harsh (criminal speeding is actually quite costly). In the same way, people flagrantly violate IP, copyright, etc - and it isn't a problem...until it becomes a problem. Others behavior doesn't define the law. – BrianH Jul 06 '16 at 14:24
  • @DaniPaniz As such, you have to decide the risk vs the reward, and realize that most of the information isn't publicly available. The other people you've seen might have just ignored warning letters, they might be in other countries and thus actually suing them is too costly to be worth while, or the lawyers might already be preparing a case but they are waiting until they think they've made enough money to be worth a really juicy suit. They are legally permitted to wait anywhere from months to years to act. The general suggestion is to play it safe unless you really think the risk is worthy. – BrianH Jul 06 '16 at 14:30
  • @TomTom: True in many jurisdictions, but United States equity courts do not follow a 'loser pays' rule. The winner in a tort case can ask the court to order the loser to pay expenses incurred (investigation, deposition, witness transportation, etc.) but not lawyer's fees. - The winner would have to file a separate suit and prove that the loser's action in bringing or defending the suit was malicious, which is a very high bar. – A. I. Breveleri Jul 07 '16 at 11:14
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While I am not licensed to provide legal advice, I can point out some important information regarding this topic to help you make an informed decision.

First, as to the question of whether there have been suits like this before, there have been similar lawsuits. The NCAA Athletes v EA lawsuit comes to mind:

http://www.usatoday.com/story/sports/college/2015/11/07/ncaa-college-ea-sports-lawsuit-payouts/75367410/

The details are slightly different, but I assume it's safe to guess that EA has greater legal and financial resources at their disposal than you do, and they still lost to the tune of US$40 million.

I can understand the drive to make stats and names and such similar, but it's not worth it. Make a great game that stands on it's own without having to stand on the backs of real people in the sport. You'll be much, much safer.

You can look up information on the Rogers Test that may be useful, though it's more for copyright and trademark (though personal names can, ostensibly, be part of a trademark).

Jesse Williams
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    I'd like to add the suggestion to take the Paradox HOI route. Make the base game mechanically fine but a little questionable in accuracy. Also make it moddable. Someone will inevitably, and in a short period of time, mod in what you legally couldn't include. –  Jul 05 '16 at 16:47
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    +1 for the reference and also +1 @WilliamKappler for the comment. Guaranteed if you make it clear who this is (as you said, a strong midfielder with Cristiano Ronaldo's features) and called him C.R. Santos (Cristano's name additive, I'm not sure about Spanish names), someone will eventually make the connection, and mod it in. – Anoplexian Jul 06 '16 at 14:46
  • @WilliamKappler , nice suggestion I thought about that. The problem is: if you create a game that is distributed online (e.g. for iOS or Android platforms) and it's a multiplayer game (i.e. every user in a domain shares the same data) then the modding option is not available anymore, unless you come up with a very complex modding strategy (e.g. the super-user of the networks can mod everything) or you let every user to change the details of their own team (but then, how about the characters that you acquire after your original team is created?). – DaniPaniz Jul 07 '16 at 15:29
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    @DaniPaniz As long as it isn't an MMO, that was solved a while ago. As long as both people install the mod there isn't really an issue, they both decided to use it, so even if it totally broke the game you can blame them. The multiplayer just needs to support matching people with given mods, which might means some checksums. –  Jul 08 '16 at 15:55
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IANAL.

Why attribute the creation of names to a human at all? Another option is to have the names be randomly generated from a list of the first and last names. If you get a collision (first name, last name, physical attributes, position) then it is provably coincidental and unintended. You'll need to check, but IMO that makes it less dangerous.

Then if there is a complaint you could theoretically just remove the first or last name from the list and it won't happen again.

Note: The generation needs to be live and different for each player. You can't just roll the dice and use "Reggie Bush" with a similar likeness because that's what came up for you.

Second Note: This may require additional design and testing of the system/stats etc in order to ensure that the different combinations work, whereas a static system may require less testing in this regard.

Nate Diamond
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    The "Why" is because people prefer to play games based on "real-life" people where the "real-life" person is identifiable. This is particularly true in sports games. If I'm going to play a sports game, I'd like to be able to identify with the characters. In that regard, I wouldn't be too thrilled playing a basketball game where my team had the name "Pawnsville Rocks" and they had a great power forward named John Jones. OTOH, It becomes very different if the team were called the "Cleveman Rocks" and that same player were called "LeBrian Jones". While not real-life names, I know who. – Dunk Jul 05 '16 at 21:06
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    Note that I didn't ask why use human names, but why should the creator of names be human? I know why we use human names just as I know why the NFL and players tightly control ownership over their names. There is plenty of value in them. OP's question was "How, as a potential 'name creator' can I create names that are sufficiently different from real names, yet are still real-ish?" Otherwise, OP would just use orc or elvish names or something like that. My answer was that if random generation makes a 'realistic' name that 'hits', then there is possibly less liability for copyright violation. – Nate Diamond Jul 05 '16 at 22:07
  • @Dunk you got my point. These are two different strategies. You can either create a game with only fake names (as lots of developers did in the past) to avoid any problem as well as any identification between real players and fictitious players in the game, or try to let people identify the players in the game with real entities. This last option, as you say, allows people to have the same "feelings" and "thoughts" about the players they play with with respect to the real ones, and that's something you would love to achieve in your game. – DaniPaniz Jul 06 '16 at 11:58
  • @NateDiamond - Sorry, I didn't realize you were referring to using a human to create the names versus computer. However, using a computer that doesn't generate a name that is "recognizable" to the actual player does no good. For all I know even if you come up with totally random names, what about the uniform number? Can you use a "real" team's real uniform numbers with random names? In a society concerned with innovation and creativity then none of this would be necessary. Trademarks and Patents are sold as inspiring those traits but in reality only suppress them. – Dunk Jul 06 '16 at 15:23
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    I never claimed there wasn't value in having a connection to an actual team. In fact, I repeatedly said the opposite. The point is that you can have a name that is recognizable to the user so long as that name doesn't intentionally infringe on someone else's copyright or trademark. Whether or not random generation using common names (including ones used by professional players) is potentially a way of creating names which are recognizable (in that they are close to 'real') but still verifiably unique and non-infringing. Recognizable is good. Semi-recognizable and non-infringing may be better. – Nate Diamond Jul 06 '16 at 15:45
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The matter is up to a court, more than likely even multiple courts if you release the game in multiple jurisdictions.

In practice, either nothing happens, or you will receive a letter that will ask you to change the names. The letter will also threaten that you'll have to pay their lawyers' bills if you don't comply. The letter may also ask for a percentage of your proceeds so far, and it may also ask for a lump sum as well, even if you comply with their other demands. You may receive multiple letters with some of them being scams and others being real.

If you go after famous football/soccer players you are pretty much guaranteed to receive several such letters, because there are multiple organizations involved that take trademark protection very seriously.

If you ignore the letters and don't pay a lawyer to represent you in court, chances are very high that you will have to pay damages and cover some part of the other party's lawyer fees.

In short, if you do this, you will end up needing a lawyer. You save money by talking to the lawyer now, instead of after the release.

Peter
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In cases like these the intent turns out to play a role in lawsuits, and it's obvious from this question that your intent is to portray existing people within your game.

In other words, you could change a lot and it might not be enough since your stated desire is to skirt the law while still making sure your customers experience a game constructed around existing people.

As such, I suggest you abandon the idea of making stats and names that specifically match existing people, and instead create characters from scratch. Thoroughly document the process you use to generate characters (randomizer with some tweaks by a person experienced in game balance but not familiar with the sport's players, for instance) because inevitably some of the random characters will appear to some to be copies of existing people. In other words, even if you purposefully avoid building characters that remind people of existing players, you'll find that humans, being adept at finding similarities, will make such connections anyway. This is good for your game, but means you may need to work harder to make sure you can prove in court that your process precludes that possibility.

If your game is not marketable without real-life characters, then you should reconsider whether to pursue it at all.

Adam Davis
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    This is crazy. I mean, I think you are totally right but this whole thing is unfair. First, it leaves the monopoly of realistic sport games to a few mighty and rich developing companies (EA, Konami, SEGA) and second, it implies that sport knowledge, which should be shared to all sport lovers, is something that is owned by the rights holders. Also, as you said even a totally randomized process of creating player profiles could, and probably would, generate characters that are similar to existing ones. To some extent there must be the possibility of demonstrating that personal rights holders.. – DaniPaniz Jul 06 '16 at 14:28
  • .. do not own the whole SPORT, or any right concerning the SPORT itself or the whole knowledge and culture of the sport itself. If I make a soccer game in which every nation has an own league, this could potentially violate the likeliness and copyrights of real football leagues unless I make up an alien nation. That is to say that there will always be someone that could claim that my game is indeed too similar to something existing in the real world. That's why I thought, in first instance, that there were some clear rules determining where the limits are to be put – DaniPaniz Jul 06 '16 at 14:31
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    @DaniPaniz I agree, copyright and IP law are definitely overstepping their intent and purpose, but today it really is a matter of whoever has the most money wins. It's unfortunate, but if you don't have the money to consult with a lawyer about this specific situation, then you don't have the money to deal with the risk that you might be sued. – Adam Davis Jul 06 '16 at 14:37
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Use mocking names. Then at least if they sued you you'd get the satisfaction of asking if they really think that Cretino Ritardo makes people think of them.

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