A Hall of Fame football player’s claim against Electronic Arts was sidelined, while a set of college players scored a touchdown in a US Court.
After much legal mumbo jumbo citing various civil codes, constitutional amendments, and previous legal cases, the United States Court Of Appeals For The Ninth Circuit in California released two separate decisions.
Using the likeness of well-known people or characters has spurned several law suits over the years with conflicting results. Most recently, Samuel Keller was lead plaintiff in a class action suit against the National Collegiate Athletic Association, Collegiate Licensing Company, and EA for using his likeness as part of the NCAA Football video series. College football and basketball players from not only Keller’s Arizona State, but from schools across the United States were included in the list of plaintiffs
Electronic Arts was out of bounds according to a court decision
Lawyers from national associations representing football, baseball, basketball, hockey and soccer coached and coaxed the judges with their opinions. Representatives from the Screen Actors Guild and Writers Guild threw in their points of view. Attorneys from radio, TV and newspapers also tossed their two cents in regarding the NCAA Licensing litigation.
Finally, in this instance, the district court concluded that the game developer had not played fair and could not use a First Amendment defense against the right-of-publicity claims made by Samuel Keller, et al. Keller’s likeness was portrayed as the virtual starting quarterback for Arizona State wearing his number 9 in the 2005 edition of Electronic Arts’ NCAA Football video game. Although the original video omits the names and hometowns of the players, third party products provide a means of uploading rosters to identify them and allowing gamers to place names on the avatar’s jersey.
A contrary decision was reached in 2003 in a similar situation regarding comic book characterizations. The court decided “the comic books are transformative and entitled to First Amendment protection” finding that the images were distorted for purposes of lampoon, parody, or caricature” whereas in Keller’s case EA “literally recreated Keller in the very setting in which he had achieved renown.”
No Doubt disliked Activision using their image beyond the scope of the licensing agreement
In yet another case, Activision had licensed No Doubt’s likeness for use in Band Hero. No Doubt rocked Activision
by alleging a breach of contract in which the courts found that this video game publisher had exceeded the scope of the license by permitting users to manipulate the No Doubt avatars.
Jim Brown fumbled in his attempt to sue Electronic Arts
Still a fourth case found a winner on the grid iron, but a loser in the courts, famous Cleveland Browns’ running back, Jim Brow
, couldn’t outrun the lawyer’s citings of case law. His complaint
centered on EA’s use of his likeness in its Madden NFL series for which he never was compensated. The court ruled against him due, apparently, to the law under which he filed the case.
So if it looks like a duck, walks like a duck, and talks like a duck, it just may or may not be cause for a law suit.
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