SAN FRANCISCO (CN) – The U.S. Supreme Court has not taken up rights of publicity in decades, and it looks like it won’t consider the issue anytime soon. The Supreme Court on Thursday denied video game-maker Electronic Art’s bid to appeal a 9th Circuit ruling for a class of college athletes led by former Nebraska and Arizona State quarterback Sam Keller.
Keller sued the NCAA and Electronic Arts (EA) in 2009 for using his image and likeness to increase profits for its NCAA-branded football and basketball video games.
The 9th Circuit’s three-judge panel found 2-1 that EA cannot hide behind First Amendment protections for artistic creations, since seeks “avatars” of players that are as lifelike as possible.
“[T]he fact is that EA elected to use avatars that mimic real college football players for a reason. If EA did not think there was value in having an avatar designed to mimic each individual player, it would not go to the lengths it does to achieve realism in this regard,” Judge Jay Bybee wrote for the majority.
Electronic Arts and its licensing company in June reached a $40 million settlement with current and former players whose images were used in NCAA-branded video games starting in January 2005.
The NCAA agreed to a $20 million settlement with players a few weeks later.
In a similar case against the NCAA, UCLA basketball star Edward O’Bannon led a class of student-athletes claiming the NCAA exploits players by profiting from their images in television broadcasts.
After a three-week bench trial in Oakland, U.S. District Judge Claudia Wilken ruled that the NCAA’s rules on paying student-athletes “unreasonably restrain trade in the market for educational athletic opportunities for Division I colleges and universities.”
Wilken enjoined the NCAA from enforcing rules against student-athletes being paid for the use of their names, images and likenesses.
NCAA attorneys filed its appeal to the 9th Circuit in August.
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