Media Groups Root for|NCAA in High Court

(CN) - Several media organizations want the Supreme Court to make it more difficult for athletes and celebrities to sue over the use of their names and images.

The Associated Press, A&E Television Networks, National Public Radio, Bloomberg and others asked the high court for permission to file a brief in support of the National Collegiate Athletic Association, which seeks to intervene in a legal battle between former college athletes and video game maker Electronic Arts.

In the first of two underlying lawsuits, former Arizona State quarterback Sam Keller and other student-athletes claimed in 2009 that EA should pay them for using their likenesses in its NCAA Football and NCAA Basketball video games.

A divided 9th Circuit panel disagreed, ruling that the games did not contain enough "transformative" elements to qualify for First Amendment protection and copyright law's "fair use" defense.

Electronic Arts appealed the decision to the Supreme Court in late September. It settled three days later, but the NCAA now seeks to intervene in order to "continue to press the important First Amendment arguments," according to its petition.

Backing that petition are the media organizations and the Reporters Committee for Freedom of the Press, who added to the NCAA's arguments in their friend-of-the-court brief.

They say the 9th Circuit made the "fundamental error" of linking publicity rights to copyright law. By borrowing the so-called "transformative test" from copyright law and applying it to publicity rights claims, the court "severely undervalues the First Amendment interests of content producers," the groups argue.

The transformative test "is so inherently vague that it provides little guidance to content creators and invites judges to impose their own subjective aesthetic preferences," they claim.

They say a 2001 California Supreme Court ruling illustrates this very point, as the court held that images of the Three Stooges on T-shirts weren't transformative, but an Andy Warhol silkscreen using those same images would be.

"But the art critics who once viewed Warhol as the quintessential knock-off artist would vigorously dispute that conclusion," the media groups argue. "The test is therefore ill-suited to be an effective substitute for normal First Amendment scrutiny."

Instead, they advocate for a two-fold test: First determine if an expressive work effectively renders the original superfluous, such as using a digital replica of Sean Connery in James Bond movies rather than actually hiring him. Then decide if the work is merely an ad in disguise, meant to promote a product or unrelated work.

"This approach would appropriately balance the right of publicity and the First Amendment," they say.

But the approach taken by the 9th Circuit in Keller and by the 3rd Circuit in Hart v. Electronic Arts -- a "virtually identical" case -- "sows even more confusion in the law and wholly fails to satisfy First Amendment standards," the groups add.

"The state interest in protecting the general public from consumer confusion is surely far more compelling than the interest in maximizing the economic rewards of individual celebrity," the petition states. "Yet the logic of Keller and Hart is that the First Amendment guarantees more freedom to engage in speech that deceives consumers than it does to create expressive works that relate to celebrities."

They urged the high court to grant the NCAA's motion to intervene, since the NCAA did not participate in the 9th Circuit appeal.

The association's licensing arm, Collegiate Licensing Co., joined EA in settling the antitrust class action led by former UCLA basketball star Edward O'Bannon.

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