Suit Against Game Maker Threatens First Amendment, Lawyer Tells Court

Wednesday, February 16, 2011

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Suit Against Game Maker Threatens First Amendment, Lawyer Tells Court

From Staff and Wire Service Reports

A lawsuit by a former college football player whose says his likeness was included in a videogame threatens the First Amendment rights not only of game makers, but also of other segments of the entertainment industry, an attorney for Electronic Arts, Inc. told a Ninth U.S. Circuit Court of Appeals panel yesterday.

If the suit by former Arizona State University and University of Nebraska quarterback Sam Keller were to succeed, “you could never use a person’s name in an expressive work.” Kelli Sager of Davis Wright Tremaine told the panel. “That cannot be the law.”

Sager cited two of the past year’s most acclaimed films, “The Social Network” and “The King’s Speech,” both of which depict historical events and use the subjects’ real names. Saying those films could not have been made without the subjects’ consent under Keller’s argument, Sager urged the panel to overturn a ruling by U.S. District Judge Claudia Wilken, who allowed the suit to proceed, and to throw the suit out under California’s anti-SLAPP statute.

Keller’s attorney, Steve Berman of Seattle, however, said his client was entitled to a chance to prove his claim that his personal right of publicity under California law was misappropriated by EA. “The argument that this case...will put an end to the movie industry is nonsense,.” He told the judges.

Rather, he argued, the case is similar to Comedy III Productions, Inc. v. Saderup (2001) 25 Cal.4th 387. The Comedy III court upheld a judgment in favor of the company that holds licensing rights for the Three Stooges, holding that while the First Amendment protects a work that is transformative—one that adds a new message to the original work, like Andy Warhol’s famous works depicting celebrities such as Marilyn Monroe, Elizabeth Taylor and Elvis Presley—it does not guarantee the right to make commercial use of “a mere celebrity likeness or imitation.”

Real People

Wilken ruled against EA, saying the company didn’t sufficiently “transform” the players’ images to qualify for First Amendment protection. She said EA’s argument that it removed the names of the players from the game wasn’t enough because it was obvious the nameless images represented real people.

For example, the virtual player wears the same jersey number, is the same height and weight and hails from the same state, Wilken said.

EA shares undisclosed royalties with the National Collegiate Athletic Association for use of college stadiums, team names and uniforms and the players’ images in the game that racks up hundreds of millions of dollars in annual sales. Because they are amateur athletes, the players don’t receive any direct benefit from the appearances of their nameless images in the game.

But Keller and an increasing number of players, such as former UCLA basketball star Ed O’Bannon, have filed at least nine federal lawsuits against the NCAA and EA over the last two years.

“When you are playing, you are kind of naive to the idea that you are being taken advantage of because you are so caught up in playing college football,” Keller, who now manages a hotel bar in Scottsdale, Ariz., told the Associated Press last week.

He was explaining why he decided to sue long after his college career ended and he failed to make the Oakland Raiders 2008 regular season roster. “They are making billions off of our images.”

A Keller victory could dramatically reshape the commercial relationship between the NCAA and its athletes, which are prohibited from receiving compensation tied to their performances. Keller’s attorney and his supporters are floating the idea of setting up a trust fund of sorts with any proceeds from the lawsuits to benefit the athletes.

They envision the NCAA continuing to fund the trust fund with the billions in dollars it receives from television networks, apparel sales and other sources.

Heavily Recruited

Keller was a highly sought recruit when he graduated from the Bay Area’s San Ramon Valley High School in 2003. He played for three years at Arizona State, garnering MVP honors for his performance as a sophomore in the Sun Bowl. After losing the starting job, he transferred to Nebraska in 2006 and sat out that season because of NCAA transfer rules. Keller started for the Cornhuskers in 2007 as a red-shirt senior before breaking his collar bone against Texas in the ninth game of the season.

Keller’s lawsuit has also unexpectedly ballooned into a major First Amendment challenge, prompting Hollywood’s largest movie studios and dozens of other interests—from the estates of reggae legend Bob Marley and Nobel laureate John Steinbeck to ESPN and the Comic Book Legal Defense Fund—to weigh in on the case.

One of the judges on yesterday’s panel, Pamela Ann Rymer, questioned Berman’s citation of Comedy III as precedent. “This case is far more expressly transformative,” she commented.

Using a player’s actual statistics, uniform number, position, and playing style to create an avatar for a videogame, Sager argued, is no different than the use of that information by more traditional media. “You can print it in a newspaper or put it in a book.”

Berman, however, argued that California courts have not found First Amendment protection when a publisher trampled upon a person’s “economic right” for the publisher’s “unjust enrichment.”

That prompted Rymer to ask “what economic right does a college football player have” since the right to play is conditional upon accepting rules of amateurism.

“You can’t take someone’s rights for nothing,” even if the person isn’t being paid for the activity that is being depicted, Berman responded.