A lawsuit brought by former Arizona State and Nebraska QB Sam Keller against EA for using his image without permission was allowed to proceed today by the Ninth Circuit Court of Appeals. It is the second such case in recent months in which an appeals court has rejected EA's First Amendment defense. The court ruled that the players' images were not changed enough in the games to transform them into protected speech and art. While one judge dissented, the remaining two judges wrote, "If EA did not think there was value in having an avatar designed to mimic each individual player, it would not go to the lengths it does to achieve realism in this regard." EA could appeal the decision to the full Ninth Circuit, or litigate the claim at the lower court.
The court rejected Pro Football HOFer Jim Brown's lawsuit alleging that EA's use of his image without permission misled consumers into believing he had endorsed the games. The judicial panel rejected that claim, but notably wrote in the decision that had the case been brought under similar terms to Keller, the outcome could have been different.
