Bay Area judges may look to a recent appeals court decision from Pennsylvania as they grapple with claims against the Redwood City gaming giant Electronic Arts. Both cases pit former college football stars against the company in a battle to resolve thorny free speech issues and decide who owns the rights to an athlete’s likeness.
Electronic Arts and its lawyers say such images are up for grabs. The gaming company used that logic when it created a character for its “NCAA Football” gaming franchise that closely resembled real-life Arizona State University quarterback alumnus Samuel Keller. In a class-action complaint filed in 2009, Keller, who went to San Ramon Valley High School in Danville, alleged that Electronic Arts had replicated his stats, jersey number and physical likeness with near-perfect verisimilitude. It had profited from the sale of those games without ever compensating the player — a practice that he and attorney Steve Berman argued is routine for the company.
Keller’s claims echo those of former Rutgers University quarterback Ryan Hart, who fought the gaming company last week at the 3rd U.S. Circuit Court of Appeals in New Jersey. A divided panel of judges voted 2-1 in Hart’s favor, reversing the district court’s decision. That bled over to the 9th Circuit case, where attorneys on both sides unleashed a flurry of briefs over the next couple of days, each citing whatever parts of the opinion benefited them.
Electronic Arts’ lawyer Kelli Sager argued that the two judges who sided with Hart hadn’t hewed to the so-called “transformative test,” which determines whether or not a reproduction is different and creative enough to count as “free expression.” Sager and her co-counsel would argue that their images of NCAA athletes are, indeed protected by the First Amendment. In court filings, they argued that Electronic Arts’ games are “expressive and transformative works,” tailored to “the public’s strong interest in information about sports and athletes.”
Berman strongly disagrees. “EA’s whole advertising slogan is realism; ‘If it’s on the field, it’s in our game,’” he said. “They’re striving to make it as lifelike as possible. They don’t want to be creative or alter likenesses.”
He added that the gaming company would never think of depicting a pro athlete without paying licensing fees to the league for which he or she played. “The NCAA has a rule that you can’t pay [amateurs],” he said, “but they wouldn’t think of doing it to people with bargaining power.”
He and Keller hope that if this suit concludes similarly to its 3rd Circuit analogue, his client and other college athletes will either receive royalties from Electronic Arts directly, or via a trust fund that they can liquidate upon graduating. If not, he’ll likely petition the U.S. Supreme Court.
An Electronic Arts spokesman said the company will seek a review of the 3rd Circuit case, and hopes to use other player avatars with impunity.