Image Rights and Creative License at Heart of EA Suit

(CN) - The 9th Circuit is weighing arguments in the case of former college football star Samuel Keller, who seeks compensation from Electronic Arts for using his image in a video game about NCAA football. The game developer says a ruling against it would have serious implications on the film industry, which regularly portrays famous personalities without permission.

U.S. District Court Judge Claudia Wilken had declined to dismiss the case after EA filed an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion to strike. The judge noted in her February ruling that EA did not "transform" Keller's image enough to avert a lawsuit.

EA appealed that decision later that year, saying that allowing such a lawsuit could stifle creative expression far beyond the video game medium. In December 2010, Wilken stayed a consolidated class action from college athletes, including Keller, against the company, finding that EA was entitled to proceedings and discovery pending appeal.

A three-judge panel heard arguments from Keller and EA's attorneys last Tuesday, and both parties are awaiting a decision in a case with First Amendment implications that have caught the attention of the film industry and other creative artists.

Attorney Steve Berman told a three-judge panel that EA's realistic portrayal of Keller's image, name and statistics for a video would be similar to Wheaties using his photograph on a cereal box without authorization.

"EA says, 'It's in the game, it's in our game.' They strive for realism," Berman said. "EA has not transformed these players."

Kelli Sager, a lawyer for Electronic Arts, countered that the state and federal courts have ruled that realism does not rule out "transformative use."

"There is nothing to suggest in the California Supreme Court or any other court that there is such a distinction for works that have a realistic portrayal of some people and works that do not," Sager said.

A different finding from the appellate court finding could threaten the film industry, Sager added.

"If the court were to find that you cannot use an actual likeness, two of the Academy Award-nominated movies would suddenly disappear," Sager said, noting that "The King's Speech" and "The Social Network" both portray real-life, and still-living, "characters," including Queen Elizabeth II and Facebook founder Mark Zuckerberg.

On Sept. 7, 2010, the Motion Picture Association of America filed a 44-page amicus brief on EA's behalf, arguing that the Keller's lawsuit could threaten the abilities of filmmakers and screenwriters to represent real lives on film.

The brief, posted on the MPAA's website, references "Citizen Kane," "Forrest Gump," "Frost/Nixon" and others.

"The real world is a wellspring of inspiration and ideas for filmmakers, authors and artists," the brief states.

Berman dismissed that argument before the 9th Circuit last week, saying that the film industry's fears are unfounded.

"EA said if Keller wins, no more 'Forrest Gump.' That's not right," Berman said, adding. "Movies are filmed with expression."

By contrast, Berman said, EA deliberately used Keller's features, height, weight, clothing, university and skills as a player to create the video game character.

"Would there never be a transformative use whenever a name or likeness is used?" Judge Pamela Ann Rymer asked Berman.

Berman replied that the video game's portrayal goes beyond using a name and likeness. "Here they are exactly as they are in real life," Berman said. "The game is exactly as it is in real life."

Sager said that Keller is trying to protect images that come from televised broadcasts that never belonged to him. "Those broadcasts do not belong to Mr. Keller and never have," Sager said.

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