EA loses ruling over 'NCAA Football' likenesses

A group of former college football players can sue Redwood City company Electronic Arts over the use of their images in video games, a federal appeals court ruled Wednesday.

The company can't escape litigation by seeking protection under the First Amendment, said the Ninth U.S. Circuit Court of Appeals in San Francisco.

The 2-1 decision upheld a federal judge's ruling in a lawsuit filed by Danville native Sam Keller, who played football at Arizona State University and the University of Nebraska from 2003 to 2007.

The court said Electronic Arts' "NCAA Football" video game uses avatars that are exact replicas of real players, down to their jersey number, build, skin tone and hair color. The game does not use the players' names.

"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 received renown," Judge Jay Bybee said in the majority opinion. "Given that 'NCAA Football' realistically portrays college football players in the context of college football games, the district court was correct in concluding that EA cannot prevail as a matter of law."

Steve Berman, an attorney for Keller, said, "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."

Electronic Arts spokesman John Reseburg said the company was disappointed with the ruling and would "seek further court review."

Bybee dismissed Electronic Arts' assertions that it was protected by free speech in using publicly available biographical information about players, saying the company's case is "considerably weakened" by the fact that the games don't include players' names.

"EA can hardly be considered to be 'reporting' on Keller's career at Arizona State and Nebraska when it is not even using Keller's name," Bybee wrote.

Dissenting Judge Sidney Thomas said the ruling would jeopardize the creative use of historic figures in movies, books and sound recordings.

"Absent the use of actual footage, the motion picture 'Forrest Gump' might as well be just a box of chocolates," Thomas wrote. "Without its historical characters, 'Midnight in Paris' would be reduced to a pedestrian domestic squabble."

Source: http://www.sfgate.com/bayarea/article/EA-loses-ruling-in-NCAA-Football-suit-4699346.php

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