The Ninth U.S. Circuit Court of Appeals in S.F. yesterday "cleared the way for a group of college athletes to sue Electronic Arts Inc. for allegedly stealing their likenesses for its videogames," according to Joe Palazzolo of the WALL STREET JOURNAL. The ruling "advanced a claim" by former Arizona State QB Sam Keller and other ex-athletes who "allege EA used their attributes in its NCAA football and basketball games." EA's lawyers "argued the depiction of college players in its games amounts to expression protected by the First Amendment." Judge Jay Bybee wrote in the majority decision that to "earn that protection under California law, EA had to show its game added creative elements that transformed the avatars into something more than a 'mere celebrity likeness or imitation.'" Bybee wrote EA's use of Keller's likeness "does not qualify for First Amendment protection as a matter of law, because it literally recreates Keller in the very setting in which he has achieved renown." The ruling was the "second this year in which a federal appeals court said the company couldn't use the First Amendment as a shield against legal claims" (WALL STREET JOURNAL, 8/1). Keller said, "We knew the First Amendment was always their main argument, and now that that's been ruled on we can proceed to the next step. The momentum has definitely shifted for the better. People are starting to realize something's got to change, and I think it definitely will" (ARIZONA REPUBLIC, 8/1).
NOW WHAT? Keller attorney Steve Berman said, "We expect that when we appear before the trial court again this fall, the defendants will have a very difficult time mounting a new defense for their blatant exploitation of student-athletes." EA Senior Dir of Corporate Communications John Reseburg said that the company was "disappointed with the ruling and would 'seek further court review'" (S.F. CHRONICLE, 8/1). Keller attorney Rob Carey said, "Because we won against EA, we will be able to go against the NCAA for its looking the other way and increasing its royalty payments by using the likenesses of the students." ESPN.com's Darren Rovell noted the case "can now proceed along with an identical case in New Jersey," which was brought by former Rutgers QB Ryan Hart. An appellate court there in May also "denied EA's First Amendment claim" (ESPN.com, 7/31). Meanwhile, ESPN's Len Elmore said the ruling will have "some impact" on college sports "depending on what the remedy is." The penalty "may ultimately bankrupt the NCAA and certainly it will force a new policy going forward as to how you televise games, how you treat players." Players may have to "negotiate individually their right of publicity." He said, "Sure, they should pay these guys. But in the long-term I hope it doesn't change the landscape of college sports" ("Closing Bell With Maria Bartiromo," CNBC, 7/31).
OTHER SUIT DISMISSED: The AP's Paul Elias reported the court in a separate ruling "tossed out Jim Brown's lawsuit against EA, even though Brown made similar -- but not identical -- allegations as Keller." Brown "argued that his inclusion in the Madden games suggested he endorsed the product." Brown attorney Ron Katz said that his client "filed his lawsuit alleging a violation of the Hall of Famer’s 'trademark' rather than Keller’s claim that EA violated his 'right to publicity.'" Authors, filmmakers and others are "allowed to use famous people’s 'trademarks' as long as they are creating new artwork and not seeking to profit specifically from the celebrity" (AP, 7/31).