Ex-Athletes Win One,|Lose One in EA Rulings


     (CN) – The 9th Circuit on Wednesday sided with former college athletes and against former NFL players in two lawsuits accusing Electronic Arts of profiting off the ex-athletes’ names and images.
     A three-judge panel in Pasadena, Calif., handed down mixed rulings Wednesday on lawsuits brought against the video game developer by former athletes.
     In the first lawsuit, former Arizona State quarterback Samuel Keller claimed EA should pay him and other former college athletes for using their likenesses in its NCAA Football and NCAA Basketball video games.
     EA argued that the games contained enough “transformative” elements to qualify for First Amendment protection and copyright law’s “fair use” defense.
     U.S. District Judge Claudia Wilken rejected EA’s motion to strike the complaint, and the 9th Circuit affirmed.
     “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,” Judge Jay Bybee wrote for the 2-1 majority.
     The panel also rejected EA’s claim that California laws aimed at shielding factual reporting applied to its games.
     “Put simply, EA’s interactive game is not a publication of facts about college football; it is a game, not a reference source,” Bybee wrote. “These state law defenses, therefore, do not apply.”
     EA had also urged the court to adopt the so-called “Rogers test,” named after a landmark 2nd Circuit case balancing First Amendment rights against claims under the Lanham Act.
     The 2nd Circuit said the Lanham Act’s protections “should be construed to apply to artistic works only where the public interest in avoiding consumer confusion outweighs the public interest in free expression.”
     The 9th Circuit declined to adopt the Rogers test in Keller’s case, however.
     “[W]e disagree that the Rogers test should be imported wholesale for publicity-of-rights claims,” Bybee wrote.
     In a dissenting opinion, Judge Sidney Thomas said EA is protected by the First Amendment because “the creative and transformative elements” of EA’s games “predominate over the commercial use of the athletes’ likenesses.”
     “Because football is a matter of public interest, the use of the images of athletes is entitled to constitutional protection, even if profits are involved,” Thomas wrote.
     In the second ruling on Wednesday involving EA, the 9th Circuit upheld the dismissal of a lawsuit brought by former NFL Hall of Famer James “Jim” Brown over EA’s use of his character in its Madden NFL video games.
     This time the court sided with the video game developer, in part because the lawsuit involved Lanham Act claims that were subject to the Rogers test.
     “As expressive works, the Madden NFL video games are entitled to the same First Amendment protection as great literature, plays, or books,” Bybee wrote for the same panel.
     “Brown’s likeness is artistically relevant to the games and there are no alleged facts to support the claim that EA explicitly misled consumers as to Brown’s involvement with the games.”
     Keller’s lawsuit is similar to the antitrust class action filed in 2009 by former UCLA basketball star Edward O’Bannon. He accused EA and the NCAA of conspiring to dupe college athletes into signing away their rights to profit from their own images.

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