Edgar Davids wins League of Legends image rights claim

Dutch football icon Edgar Davids has succeeded in suing Riot Games – makers of the world's biggest video game and eSports phenomenon, League of Legends.

Background

Edgar Davids, an icon of football in the late 90s and 00s, was always pro-active in commercialising his image as a player.  Fans of video games may remember Davids as being a front cover feature of the FIFA Football 2003 video game alongside Roberto Carlos and Ryan Giggs.

Fast forward 14 years and Davids remains active in the protection of his image and likeness.

League of Legends is an online multiplayer video game developed and published by Riot Games.  It is regarded as (at least one of) the most played PC games in North America and Europe.  It is actively played in eSports tournaments around the world and is one of the largest global eSports in its own right.

League of Legends introduced a new character skin which converted an original character, Lucian, into a modified "Striker Lucian" – in essence putting Lucian in a football kit and making him look like Edgar Davids (similar broad jaw, skin tone, dreadlock hairstyle, angular tinted protective googles, football kit). 

Enforcing image rights…home or away?

Publicity rights or image rights are a key feature of commercialisation in sport, but their treatment under law is not harmonised across Europe.

Each EU Member State has separate frameworks when it comes to individuals protecting their image.  Member States generally perceive publicity and image rights to be personality rights.  This creates obligations on third parties not to use or recreate an individuals' likeness without consent.  The commercial aspect of personality rights for high profile sports stars like Edgar Davids means that continental Europe is often seen as a less restrictive (and therefore more attractive) forum for protection and enforcement.

By contrast, there is no specific image right under English law.  Here sports stars must rely on a patchwork of principles and concepts to try and prevent the unauthorised use of an image (such as passing off / false endorsement). 

Davids has lived in England since 2010 but retains his Dutch citizenship – given the more favourable framework, Davids chose the Dutch courts as the forum in which to bring his claim.

The court in Amsterdam found that the combination of the similar elements between Striker Lucian and Davids described above caused the public to associate or identify Striker Lucian as being Edgar Davids (or based on Edgar Davids).  The court relied on evidence showing League of Legends players drawing such a conclusion in online messages.  It was also discovered that Riot Games themselves (via an employee) admitted that Davids was the inspiration for the Striker Lucian skin.

It has been widely reported that Riot Games sought to argue that League of Legends players would not have recognised Striker Lucian as being Edgar Davids – the court was not persuaded.

What are the key takeaways?

The exploitation of image rights in sport is big business.  The individual whose image is being exploited generally holds the image rights, although corporate entities may hold the rights for tax efficiency purposes. 

Either way, there is an economic interest in protecting and enforcing image rights in ways akin to protecting and enforcing intellectual property rights – both should be given equal weight when developing a sports star's strategy to commercialising the brand.  However, it is vital to be conscious of the fact that image rights are not harmonised in Europe, and that careful strategic thinking with regard to brand protection is required, including where to enforce.

The RPC Sports team specialises in brand protection and advising in relation to image rights.  It also incorporates specialists from the firm's dedicated Tax team who regularly advise clients on the tax implications of image rights, including issues/queries raised by HMRC.