By Jonathan Stempel
(Reuters) – A divided U.S. federal appeals court ruled against Electronic Arts Inc in a lawsuit by former collegiate athletes who accused the company of using their images in video games without permission.
By a 2-1 vote, the 9th U.S. Circuit Court of Appeals said EA’s use of the likenesses of former college players in its NCAA Football and NCAA Basketball games did not deserve protection as free expression under the First Amendment of the U.S. Constitution.
The athletes, including onetime Arizona State University quarterback Samuel Keller, claimed that EA had misappropriated their identities and likenesses without compensation.
Electronic Arts said it plans to appeal.
Circuit Judge Jay Bybee wrote for the 9th Circuit majority that EA “literally recreates Keller in the very setting in which he has achieved renown,” and lacked “significant transformative elements” to defeat a right-of-publicity claim.
The judge noted that in the 2005 edition of NCAA Football, the virtual starting quarterback for Arizona State had the same height, weight, facial features, hair color and style, home state, playing style, school year, skin tone, throwing arm, uniform number and visor preference as Keller.
Circuit Judge Sidney Thomas dissented, saying the games’ creative and transformative elements “predominate over the commercial use of the athletes’ likenesses,” entitling EA to First Amendment protection from liability.
Wednesday’s decision came after a federal appeals court in Philadelphia on May 21 revived a similar lawsuit by former Rutgers University quarterback Ryan Hart. It said Hart’s right of publicity outweighed EA’s right of expression.
In a separate decision also written by Bybee, the same 9th Circuit panel by a 3-0 vote on Wednesday upheld the dismissal of Hall of Fame running back Jim Brown’s lawsuit against EA over the use of his likeness in its Madden NFL video game.
It said Brown’s likeness was “artistically relevant” to that game, and that there was no showing that EA explicitly misled consumers about his involvement with the game.
EA spokesman John Reseburg said in a statement: “We’re pleased with the outcome regarding Jim Brown’s likeness, but equally disappointed with the ruling against First Amendment protection in the Keller case. We believe the reasoning in Judge Thomas’ dissent in that decision will ultimately prevail as we seek further court review.”
Lawyers for the NCAA athletes and Brown were not immediately available for comment.
The cases are In re: NCAA Student-Athlete Name & Likeness Licensing Litigation, 9th U.S. Circuit Court of Appeals, No. 10-15387; and Brown v. Electronic Arts Inc in the same court, No. 09-56675.
(Reporting by Jonathan Stempel in New York; editing by Andrew Hay)
[Football player via Shutterstock]