Electronic Arts (credit: Michal Czerwonka/Getty Images)

Electronic Arts (credit: Michal Czerwonka/Getty Images)

SAN FRANCISCO (CBS SF) – A federal appeals court in San Francisco ruled Wednesday that video game maker Electronic Arts Inc. is not protected by the right of free speech against a lawsuit filed by college football players who are challenging the company’s use of their likenesses.

The Redwood City-based company had sought dismissal of the lawsuit, which is led by former quarterback Sam Keller and is pending in U.S. District Court in Oakland.

The company argued that its use of images in its NCAA Football series was protected by the First Amendment right of free expression.
But a panel of the 9th U.S. Circuit Court of Appeals said in a 2-1 vote that the game maker’s use of the likenesses is so realistic that it can’t argue it added creative or transformative elements that amount to First Amendment expression.

“EA’s use 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,” Circuit Judge Jay Bybee wrote. The court majority noted that in the games, “EA seeks to replicate each school’s entire team as accurately as possible,” including use of the same jersey number, height, weight, skin tone, hair color and home state for avatars representing football players.

EA spokesman John Reseburg said the company will appeal further. If not successfully appealed, the decision sends the case back to
U.S. District Judge Claudia Wilken in Oakland for further proceedings on the players’ claim that EA is infringing on their right of publicity, defined as the right to control the commercial use of their likenesses. Wilken has scheduled a Sept. 5 case management hearing on the lawsuit.

The suit was filed in 2009 by Keller, a former Arizona State University and University of Nebraska quarterback, and eight other former college basketball and football players. The appeals court ruled specifically on the use of Keller’s images, but said the same reasoning applies to the other players’ claims.

The lawsuit seeks to be certified eventually as a class action on behalf of all former National College Athletic Association student athletes whose likenesses are being used.

Steve Berman, a Seattle lawyer representing Keller, said, “The Court of Appeals confirmed that EA’s defense — the First Amendment claim — was fundamentally and fatally flawed.

“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,” Berman said.

In a second case that originated in federal court in Los Angeles, the same appeals panel unanimously upheld a trial judge’s dismissal of a trademark claim in a lawsuit filed against Electronic Arts by former professional football player Jim Brown.

The appeals court said Brown’s image was “artistically relevant” to the company’s Madden NFL video game.

EA spokesman Reseburg said, “We’re pleased with the outcome regarding Jim Brown’s likeness, but equally disappointed with the ruling against First Amendment protection in the Keller case.”

(Copyright 2013 by CBS San Francisco and Bay City News Service. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.)


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