First Amendment Protections For Games At Issue In EA Player Likeness Appeals

First Amendment arguments once again took center stage during an appeals court discussion of two related lawsuits regarding the unauthorized use of player likenesses in EA Sports games. Electronic Arts today asked a federal appeals court to throw out a lawsuit brought by former Arizona State quarterback Sam Keller and other NCAA players regarding use of their images in the company's NCAA sports games. The company reprised First Amendment arguments that were overruled by a lower court judge roughly one year ago in arguing games are being held to a different standard than works in other media. “As applied by the district court, the test arguably would not protect any expressive work that uses a person’s actual name or realistic likeness, including films like Forest Gump, The Aviator, and Boys Don’t Cry,” the company told a three-judge panel today, as reported by Bloomberg. The court also heard an appeal in a related case brought by former Cleveland Browns player Jim Brown over use of his likeness in the Madden NFL series. A lower court judge dismissed Brown's case in 2009, arguing that the Madden games are "expressive works, akin to an expressive painting that depicts celebrity athletes of past and present in a realistic sporting environment." But Brown argues that ruling relied on an improper precedent set by a film based on the lives of Fred Astaire and Ginger Rogers, with facts significantly different from those in his case. Video games are also at the center of a case involving proposed restrictions on the sale of violent games in California, which is currently being considered by the Supreme Court. A three-judge panel from the federal ninth circuit court of appeals will rule on both EA cases.