Electronic Arts is awaiting a ruling from the U.S. Court of Appeals for the Ninth Circuit as to whether it infringed on Jim Brown’s and Sam Keller’s images by using them in video games, but attorneys for the company have pointed the court to a recent court victory for World Wrestling Entertainment in a somewhat similar case. EA filed that full decision with the appeal court late last week, arguing the case proved that EA had the right to use the public images of Brown and Keller. “Emphasizing the public interest in athletes and their accomplishments, the Somerson court granted a motion to dismiss a former professional wrestler’s right of publicity and related claims, which arose from WWE use of his name and likeness on its websites and on a DVD,” EA outside counsel Kelli Sager wrote in a brief for the Ninth Circuit. Douglas Somerson, who went by the ring name "Pretty Boy" Doug Somers, sued WWE, but his case was dismissed on March 7 by a federal court in Georgia. There appears to be at least one critical difference between the cases: WWE did not put Somerson’s image on merchandise. EA uses avatars similar to Brown and Keller in their games. The Ninth Circuit heard oral arguments in November in both the Brown and Keller cases. While the cases are related, Brown and Keller are separately suing EA over using their images in video games without their permission.
