Former collegiate athletes scored an important victory today in their right-of-publicity lawsuit with NCAA Football publisher Electronic Arts, the NCAA and the Collegiate Licensing Company (CLC), with a federal appeals court ruling that EA's use of the athletes' likenesses is not protected under the First Amendment.
In a 2-1 decision, a panel of judges in the U.S. Ninth Circuit Court of Appeals upheld a lower court's decision to deny EA a motion to strike the athletes' complaint as a strategic lawsuit against public participation. Sam Keller, who played quarterback at Arizona State University and the University of Nebraska, had filed a lawsuit in May 2009 objecting to EA's use of his likeness in the company's NCAA Football series of video games.
"EA's use does not qualify for First Amendment protection as a matter of law because it literally recreates Keller in the very setting in which he has achieved renown," said the judges in the majority opinion.
With EA's appeal being denied, the lawsuit now returns to U.S. District Court and can proceed, potentially as a class action. Keller's complaint has been consolidated with another putative class-action case, an antitrust lawsuit led by former University of California, Los Angeles player Ed O'Bannon. Both EA and the NCAA filed motions in that case yesterday to request its dismissal.
One of EA's arguments on appeal had centered around the "transformative use test" — the company said that under the First Amendment, it had a fair-use right to use Keller's likeness in its NCAA Football games, and that the games were transformative to his likeness because users could edit players. Courts use the test to determine "whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation."
"EA's use does not qualify for First Amendment protection"
The judges in this lawsuit decided that EA's games failed that test, saying, "We conclude that EA's use of Keller's likeness does not contain significant transformative elements such that EA is entitled to the defense as a matter of law."
"The Court of Appeals confirmed that EA's defense — the First Amendment claim — was fundamentally and fatally flawed," said Steve Berman, managing partner of law firm Hagens Berman Sobol Shapiro LLP, who argued the appeal on Keller's behalf. "We expect that when we appear before the trial court again this fall, the defendants will have a very difficult time mounting a new defense for their blatant exploitation of student-athletes."
The appeal ruling comes two weeks after the NCAA decided to end its relationship with EA and its NCAA Football franchise as a result of "the current business climate and costs of litigation."
We've reached out to EA for comment and will update this article with any information we receive. You can read the appeals court's full opinion at the source link below.
Update: A representative for EA told Polygon that the company is "disappointed" with the court's ruling. "We believe the reasoning in Judge Thomas' dissent in that decision will ultimately prevail as we seek further court review," the spokesperson added.
In his dissent, Judge Sidney Thomas said that the "creative and transformative elements of Electronic Arts' NCAA Football video game series predominate over the commercial use of the athletes' likenesses," a line of thinking that would accord EA protection under the First Amendment for that use.
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