Video gamemaker Electronic Arts, Inc.’s use of the likenesses of college athletes, like former quarterback Sam Keller, is not protected by the First Amendment, the 9th U.S. Circuit Court of Appeals ruled Wednesday.
The 2-1 decision hands a major victory to Keller and his class action on behalf of dozens of former college athletes in their fight to force EA to compensate them for use of their likenesses in its games.
In a second, separate case, the same panel upheld dismissal of a trademark claim against Electronic Arts by former professional football player Jim Brown, for use of his likeness in its Madden NFL series of games.
The court in Keller’s case recognized that videogames, in general, are entitled to the full protection of the First Amendment, like books, plays and movies, but “it is not absolute” and some states may recognize a right of publicity to individuals used in the games.
Keller, a starting quarterback for Arizona State University in 2005 and later the University of Nebraska, sued EA for alleged violation of his publicity rights in its popular NCAA Football series of video games using avatars representing college players.
EA did not qualify for First Amendment protection “because it literally recreated Keller in the very setting in which he had achieved renown,” the court found.
“Under California’s transformative use defense, EA’s use of the likenesses of college athletes like Samuel Keller in its video games is not, as a matter of law, protected by the First Amendment,” wrote Judge Jay Bybee. He was joined by visiting Judge Gordon Quist of Michigan.
In dissent, Judge Sidney Thomas said that “because the creative and transformative elements of Electronic Arts’ NCAA Football video game series predominate over the commercial use of the athletes’ likenesses, the First Amendment protects EA from liability.”
The consequence of the majority view is that “all realistic depictions of actual persons, no matter how incidental, are protected by a state law right of publicity regardless of the creative context,” he said.
The majority ruling upholds a decision by U.S. District Judge Claudia Wilken in Oakland who refused to strike the complaint against EA based on the company’s claim that the suit was a strategic lawsuit against public participation, under California’s anti-SLAPP law.
In the National Collegiate Athletic Association-sanctioned videos, the company replicates each school’s entire team as accurately as possible. Every real football player on each team as a corresponding avatar in the game, with the actual jersey number, height , weight, skin tone, hair color and home state. The only difference is EA omits the players’ names on the jersey.
It is worth noting that should EA seek reconsideration of this decision by a vote of the full court for what’s known as en banc review, a split decision with a visiting judge casting the deciding vote, increases the likelihood the full court might reconsider.
Case: In re: NCAA Student Name & Likeness Licensing Litigation, No. 10-15387
Brown v. Electronic Arts, No. 09-56675