In two weeks, President Obama will appear in a video game for the second time in two months. Is he being paid for that? Is the White House cutting deals with sports game makers? Not likely.
Obama appears in a special cinematic added this year to Madden NFL 11's Super Bowl presentation mode. Win it all, and your team gets a White House visit with the POTUS, just like in real life. NBA 2K11 this week revealed it will have the same type of ceremony when your franchise takes home the title in its Association mode.
American society enjoys the most robust entertainment culture - and, it seems, civil litigation market - in the world, so most folks are aware that when someone shows up in a commercial work, he has to give his permission, and often is compensated. Otherwise, he might and often does sue.
Not so with the president. And not because he doesn't have rights to his likeness.
"A sitting president is probably never going to sue," said Michael Risch, a professor at Villanova University's School of Law. "That's why there aren't really any cases about it."
Essentially, a president is the one A-list celebrity you get to use for free, provided you're not too egregious about it. A sitting president filing a civil suit over the unauthorized use of his image is as bad a play politically as could be imagined, especially if the work in which he's appearing is complimentary and respectful as is the case with Madden and NBA 2K.
Both studios could also make technical arguments that these depictions of real life events are legitimate under First Amendment rights and fair use principles. But the controlling condition here is that a public fight over this sort of thing would tank a president's popularity in just about every demographic available, and expose him to unnecessary criticism and ridicule when he has more important issues on his plate.
"It's a legal loser and it's a political loser as well," says Jeff Kravitz, an entertainment and intellectual property lawyer with Fox Rothschild in Los Angeles. "If a president was in fact mad about it, and I was one of his advisors, my advice would be, ‘Mr. President, just smile and make a joke about it.' Go out and say they made you look like you lost a few pounds, and laugh and move on."
Past presidents have put a stop to unauthorized use of likenesses, but typically it has involved the First Family's appearance in something, not the president himself. Obama's children were featured as collectible dolls shortly after his inauguration. Michelle Obama publicly objected, and the names of the collectibles were changed to remove the reference to the kids, without a lawsuit.
Another sticky area would be an appearance that implies an endorsement. Obama showing up as a character in a real life event doesn't communicate his endorsement of NBA 2K11 or Madden NFL 11. But, "If you were to change the facts of the endorsement and have him standing there with a Nike basketball and a lot of Nike symbols, somebody from Oregon [where Nike is headquartered] or the White House might make a phone call," Kravitz said.
Incidentally, Obama appears with a Spalding-branded basketball in NBA 2K11, but that is the league's official ball. Its use is germane to the context. But to put bottles of Gatorade, also an NBA 2K11 sponsor, in the ceremony, that would be out of line.
These are the unspoken realities for the president. The sports publishers must deal with unwritten rules, too. The first is they can't look like they're touting this appearance too loudly.
This week I contacted both EA Sports and 2K Sports with a list of questions about how they decided to put Obama in their game, what legal vetting this decision got, and if they had any contact with the White House. They really love it when you want a comment from their lawyers.
So I got a polite decline from one publisher and from another, appropriately enough, what I call a pocket veto, which is a request for comment that doesn't get answered. (I subsequently emailed them saying I could read between the lines, and to disregard the request.)
It's not because either is up to no good. But if they were to market this enthusiastically, even in comments to the business press, then it could look like they were trying to sell games off Obama's name.
That's not only a bad idea because it'd get a phone call from the commander in chief, but also because plenty of Republicans buy video games, too.
And there we see a second set of risks that keeps these presidential appearances from mushrooming across video games, sports or otherwise. We saw it when EA Sports first mentioned the White House ceremony - they took flack from gamers who don't care for Obama or his policies. A political figure, regardless of his depiction, is fundamentally polarizing to some.
By all accounts, Madden's Super Bowl presentation and White House ceremony is a popular feature and it's cool to watch the first few times you do it. So it'll probably be back next year in Madden, and I don't see why NBA 2K12 wouldn't have it either. Also, considering that President Clinton appeared, while in office, in the original NBA Jam, there'd be some precedent for including Obama in this year's reboot on the Wii, Xbox 360 and PS3. (Asked if Obama would be in the game, EA Sports Vancouver, the studio making the game, declined comment.)
But after that, the publishers of the annual sports titles then would be faced with the decision of discontinuing these appearances or taking heat from partisans portraying it as an unfair, free political ad in a video game during an election year. My guess is we won't see this in 2012, especially as folks may be playing these games with a different president in office before the next version comes out.
Yet if the White House changes hands, on a PR level they might have to bring it back in 2013 or face a real headache from aggrieved Republican gamers, who would have a legitimate point.
For now, President Obama's appearances in NBA 2K11 and Madden NFL 11 show that video games, like collectible plates, coins and other knickknacks going back decades, are another medium in which the president's likeness is fair use, and is increasingly being used.
A sitting president is the primary definition of a public figure, a head of state representing an entire nation. He has almost no private life, and signed up for that when he began his campaign. Widespread fair use of his image without his knowledge or consent is a part of the bargain. To sue would be bullying and a needless distraction. To sign endorsement or product appearance deals as a sitting president, and be privately compensated for them, would be profoundly undignified, and invite a wave of criticism, all of it deserved, if not an investigation from an opposition-controlled Congress.
So this is all part of the game, and that's why Obama's in them on our consoles.
"We elected him," Kravitz said, "So we do kind of own him. It's an American tradition."
Stick Jockey is Kotaku's column on sports video games. It appears Saturdays at 2 p.m. U.S. Mountain time.