College Quarterback Breaks Through Game Maker’s First Amendment Defense

The Ninth Circuit Court of Appeals (sitting in San Francisco) has opened the door to college athletes’ challenges to the use of their images in popular sports video games. Former college football quarterback Sam Keller scored a victory in his claim against Electronic Arts, Inc., maker of the popular Madden NFL and NCAA Football video games, over the use of his jersey number and general appearance on one of its game avatars.  The appellate court held that the video game manufacturer was not protected by the First Amendment against the athlete’s right-of-publicity claim absent a transformation of the avatar beyond a mere celebrity likeness or imitation of Keller, which it did not do.  Allowing Keller’s suit to go forward, the court found that the video game did not qualify for protection as a “transformative use” because it “literally recreates Keller in the very setting in which he has achieved renown,” rather than creating some protectable new art of its own.  The court found that Keller was represented as “what he was: the starting quarterback for Arizona State” and Nebraska and that “the game’s setting is identical to where the public found [Keller] during his collegiate career: on the football field.”  As such, any expressive elements of the game were subordinated to the overall goal of portraying an actual celebrity likeness of Keller, thereby commercially exploiting his popularity and fame.

This victory comes after months of skirmishes between a variety of amateur and professional athletes alike concerning the propriety of using their names, jersey numbers and likenesses in sports video games.  Leagues like the NFL (including the NFL players union) and the NCAA have licensed the use of their trademarks, including team names, logos and even jersey numbers for inclusion in such games.  For that reason, a similar suit by former NFL star and Hall of Famer Jim Brown failed on trademark grounds.  To have succeeded there, Brown needed to prove that the use of his image or likeness conveyed an endorsement or sponsorship of the game, which the court found he did not do.

But for Keller and other college athletes who are prohibited from participating in revenues generated by the licensing deals made by the NCAA, the notion that the game creators could profit from their talents and abilities didn’t sit well.  Let’s face it, the games sell because gamers want to play their favorite athletes, not some generic lineup.  So why shouldn’t the athletes be able to control who profits from their success?  Perhaps recognizing the inequity of the situation, the NCAA announced just last month that it would not renew its license agreement with EA Sports, citing “the current business climate and costs of litigation,” as factors contributing to the decision.

So what does this decision mean for content creators?  As the lone dissenting Judge recognized, this victory puts at risk every artist, author or film maker who includes a realistic representation of any individual, whether celebrity or not, in his or her work.  In this manner, the ruling “jeopardizes the creative use of historic figures in motion pictures, books, and sound recordings.” Through some creative expression of his own, the dissenting Judge illustrated the problem as follows: “Absent the use of actual footage, the motion picture Forrest Gump might as well be just a box of chocolates. Without its historical characters, Midnight in Paris would be reduced to a pedestrian domestic squabble.”  (Not that Midnight needs to endure any morelegal tests of IP boundaries pushed.)

While not over, Keller’s suit is headed next for class action status, by which all similarly situated college athletes now watching from the sidelines might be allowed to join in the litigation game.  With EA Sports’ primary defensive line substantially hobbled, all that remains to be seen is what kind of numbers the famous quarterback’s team can post.  Stay tuned.

In Re: NCAA Student-Athlete Name & Likeness Litigation, Case No. 10-15387, D.C. No. 4:09-cv-01967-CW (9th Cir. July 31, 2013)