SBD/January 13, 2011/Marketing and Sponsorship

EA Blasts Sports Unions In Court Filing As Part Of Keller Lawsuit

Electronic Arts yesterday in a federal court filing blasted the major sports unions for their contention that the gamemaker’s products are not protected by the First Amendment. The unions -- the NFLPA, MLBPA, NBPA, NHLPA and MLSPU -- in November sided with Sam Keller, a former Arizona State QB who in '09 sued EA and the NCAA for allegedly using his image in videogames without his consent. EA used the last 10 pages of its 34-page reply brief to specifically counter the unions, which filed an amicus curiae brief on behalf of Keller. “The Players [unions] assert that the ‘First Amendment does not protect [video games] that do nothing more than simulate, as realistically as possible, actual sporting events populated by real athletes,’” EA wrote in its brief. “This argument mischaracterizes EA’s games and misstates First Amendment law.” EA’s contention is that the games are akin to works of art, and not commercial speech as the unions and Keller argue. EA argued that if Keller succeeds, that could also “strip protection from countless other creative works, including films like The Social Network, Forrest Gump, and All the President’s Men, novels like E.L. Doctorow’s Ragtime, Thomas Pynchon’s Gravity’s Rainbow, and Don DeLillo’s Libra, songs like Elton John’s Candle in the Wind and Simon and Garfunkel’s Mrs. Robinson, and plays like Steve Martin’s Picasso at the Lapin Agile, all of which feature the names or likenesses of real-life individuals.” A federal district judge declined to dismiss the case early last year against the videogame maker, ruling that EA had not sufficiently transformed the players images to merit first amendment protections. The videogame maker appealed to the Ninth Circuit Court of Appeals, which will hear oral arguments next month.

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