- A panel of judges ruled against EA on Wednesday saying that First Amendment rights does not extend to the game company. (Photo: Twitter/EA NCAA Football)
On Wednesday, a three-person federal appeals panel by a vote of 2-1 overruled the argument from Electronic Arts that the 1st amendment protects them from the lawsuit brought on by former college athletes Ed O'Bannon and Sam Keller.
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EA argued that the 1st amendment gave them free expression and artistic work when they use the likenesses of college athletes in video games. The two judges ruled that EA "does not qualify for First Amendment protection as a matter of law because it literally recreated (Sam) Keller in the very setting in which he has achieved renown." They looked at the fact that while Keller's name isn't in the game, his exact height, weight, skin tone, build, hair color, home state, throwing hand and year of eligibility is uses giving fans the impression that the player in the game in Sam Keller.
"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," wrote Judge Jay S. Bybee in the decision.
The judge who voted for EA wrote in his dissenting opinion that "because the creative and transformative elements of Electronic Arts' NCAA Football video game series predominate over the commercial use of athletes' likenesses, the First Amendment protects EA from liability."
Nathan Siegel, who filed the brief for EA and other media companies called the decision by the three member panel "disappointing."
"This decision flies in the face of principles of creative expression that have been in place for decades," said Siegel.
"The court is doing one of two things. It's either creating a special rule of law for video games, even though the Supreme Court said a few years ago that video games have the same right of expression as other forms of media. Or, the court is articulating some principle that could be applied more broadly, which would open the door for more celebrities to assert their right [to publicity in media products].
The next step for EA is an appeal of Wednesday's ruling to the 9th Circuit Court with the Supreme Court as a possible destination. ?
EA used examples of movies which are not subject to judgments on using someone's name or likeness. In a 2009, Hall of Fame running back Jim Brown argued that a player similar to him when he played in the 1960's "represented a false endorsement" of the game he was featured in. In that case, it was determined that EA did not try to deceive users about Brown's involvement in the game.
On Monday, EA filed a brief for a possible dismissal from the case with U.S. District Judge Claudia Wilken. While Wednesday's ruling does not affect the filing on Monday, it does help cement the O'Bannon/Keller lawsuit as legitimate. EA must stay in the fight with the NCAA and Collegiate Licensing Company in what could turn out to be a lawsuit that could go on for years.
"Because we won against EA, we will be able to go against the NCAA for its looking the other way and increasing its royalty by using the likenesses of the students," said Rob Carey, the attorney for Keller and other former players who joined the lawsuit. "We look forward to showing a jury the hypocrisy of the NCAA along with the blatant misappropriation by Electronic Arts of the property of the student athletes."
Stay with iDigitalTimes as we will continue to cover the EA Sports/NCAA lawsuit until its end.?
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Source: http://www.idigitaltimes.com/articles/19194/20130801/ncaa-ea-sports-lawsuit-court-rules-against.htm
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