First Amendment

First Amendment doesn't protect video game maker for using athlete avatar, 9th Circuit says

A federal appeals court is allowing a former college athlete to pursue a right-of-publicity lawsuit against a video game maker that used an avatar with his jersey number and looks.

The San Francisco-based 9th U.S. Circuit Court of Appeals found that the company, Electronic Arts Inc., was not protected by the First Amendment, report Reuters, the Am Law Litigation Daily, the Wall Street Journal (sub. req.) and the Hollywood Reporter. The win by former Nebraska and Arizona State quarterback Sam Keller paves the way for claims by a group of former college football and basketball players.

In the majority opinion (PDF), Judge Jay Bybee wrote that states may recognize a right of publicity to a degree consistent with the First Amendment. Under a test developed by the California Supreme Court, Electronic Arts isn’t entitled to First Amendment protection unless it transforms the avatars into something more than a “mere celebrity likeness or imitation.” The video game didn’t do that, he said.

The use of Keller’s likeness “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,” Bybee said.

Though Electronic Arts doesn’t pay the athletes, it does pay the licensing arm of the National Collegiate Athletic Association to use team names, the Wall Street Journal says. Meanwhile, athletes are also challenging an NCAA rule that bars athletes from profiting from publicity.

The Keller ruling is one of two involving Electronic Arts that the 9th Circuit issued on Wednesday. In the second (PDF), the video maker won dismissal of a trademark claim by former NFL player Jim Brown, who sued over use of his likeness in the Madden NFL video game. Brown had alleged violation of a Lanham Act provision that prohibits companies from misleading consumers as to the source of origin for a product, the Hollywood Reporter explains.

Bybee said that EA was protected because Brown’s likeness was “artistically relevant” to Madden NFL, and the company didn’t explicitly mislead consumers about his involvement in the games.

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