Court rejects EA's First Amendment appeal in likeness lawsuit

U.S. court of appeals strikes down claim that practice of using an athlete's likeness was protected under the First Amendment.

A United States court of appeals today rejected EA and NCAA's latest appeal over the use of collegiate athletes' likeness in the publisher's games.

The 2-1 ruling from the Ninth Circuit Court of Appeals dismissed EA's claim that the practice of using an athlete's likeness was protected under the First Amendment.

The case was originally filed in May 2009 by former Arizona State University and University of Nebraska starting quarterback Sam Keller.

Keller and his legal team, Hagens Berman Sobol Shapiro LLP, contend that EA's NCAA games use athletes' likenesses, including accurate depictions of height, age, and weight, without permission.

"Today’s ruling, combined with the NCAA's decision not to renew its license, speaks volumes about the actions of the defendants," attorney for Keller Steve Berman said in a statement. "We are confident that EA and the NCAA made millions of dollars at the expense of student-athletes by improperly taking property belonging to the athletes and the athletes alone. This ruling will give us a chance not only to recover the value of the images for the college athletes, but also to punish EA and the NCAA for intentionally profiting off of things they knew were off limits to them."

In a separate ruling today, EA prevailed against former Cleveland Browns running back Jim Brown in a similar case on that grounds that his likeness was "artistically relevant" to the games. The NFL Hall of Famer had been alleging that EA was illegally profiting from his likeness and identity due to the publisher's inclusion of a physically and statistically similar running back on its "All Browns Team" of Cleveland football greats.

"We're pleased with the outcome regarding Jim Brown’s likeness, but equally disappointed with the ruling against First Amendment protection in the Keller case," an EA representative told GameSpot. "We believe the reasoning in Judge Thomas' dissent in that decision will ultimately prevail as we seek further court review."

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Discussion

57 comments
Unfallen_Satan
Unfallen_Satan

I am impressed by the prudence and humility demonstrated by the 9th Circuit. I find this legal issue far from clear cut for Keller's claim to be dismissed on anti-SLAPP grounds. Even though the ruling hasn't done EA any favors, I still give them close to even chance of winning the actual civil action. I am scared of EA's legal team now.

Thanatos2k
Thanatos2k

Good.  Take the corrupt NCAA and EA to the cleaners.

XxXeroxX
XxXeroxX

I couldn't care less about EA. As far as I'm concerned, I hope they go bankrupt. You can only go so far as a company when you're dubbed Worst Company in America, twice. 

I see a Trifecta coming.

lils17
lils17

This sounds like a bunch of guys that couldn't get a shot at the next level of their sport, still trying to cash in.

Sirkrozz
Sirkrozz

So... "as we seek further court review." = "wait until the judges name their prize", maybe?

It astonishes me how EA business practices look so similar to the ones used by (my country) Argentina's politicians,... over time, actually.

Videogame Industry: Providing additional insight on Political Practice.

kungfuj0
kungfuj0

As far as I'm concerned, ANYTHING that hurts either EA or the NCAA is a good thing in my book.  And if it ultimately helps to get college football and basketball players paid, that makes it even better.  Those guys are essentially serfs at this point.

NeverMore0
NeverMore0

Whichever judge voted the other way is a fucking idiot.

hadlee73
hadlee73

They should also avoid making any of the players look like Ellen Page, because that would not be appreciated :P

richten71
richten71

I haven't had a chance to go and read the whole case yet, but it sounds like EA wasn't losing for using a person's likeness in their games, but that they lost for saying that it was their First Amendment right to use a player's likeness. I'm not sure why they wouldn't run the NCAA case the same way they ran the Jim Brown case? They are probably regretting it now.

Timmy_Gwar
Timmy_Gwar

In my day you'd be pretty f**king excited to make a metric s**tload of money for playing football AND being honoured in a game. Then again, I practice an ancient tradition called modesty.

Seriously, everyone acts like its all about being the richest guy that no one knows.

Edit: Oh wait, college athletes. That crap is slavery, I'd be pissed too.

DrKill09
DrKill09

Why didn't he want to be in the game?  Is he a pussyboy or something? 

Ghosthunter54
Ghosthunter54

What a joke. Can't believe EA couldn't come up with a better excuse than "it's our first amendment right to steal every viewable facet of someone's identity except their name and make money off them."

Redsyrup
Redsyrup

EA: It's nothing personal. Just business.

dark_rising76
dark_rising76

Man, EA is definitely trying to go for that trifecta for that "worse company in America" award.

DrowNoble
DrowNoble

Great so college players who didn't get a multi-million dollar NFL contract are going to try and bilk the NCAA and EA for money because Player #42 was based off them!  Without #42 the whole franchise would fail!

Ugh...

In a Madden (or similar) game, they specifically use the likeness and moves of a specific player.  Since these are non-pro college kids, they are just making facimilies which are based on, but not exact to, the players.

I think EA should share profits with NCAA as a whole, who should then in turn distribute the funds to schools.  However, to give money to a specific player is absurd and is just showing how greedy some players are.  All EA is going to do is just make a game with generic players now who don't in any way resemble the real like college players.

adroge1
adroge1

I dislike the same crap being released year after year as the next person, but let's be realistic here, whoever is on the box cover isn't going to sway enough people so that millions of dollars were earned just because of it.

NightOfInsomnia
NightOfInsomnia

Time to move on to the second amendment and form a well regulated EA militia. 

nurnberg
nurnberg

I am wondering, does every single professional player in a game like Madden gets paid by EA to be included in the game?

Takeno456
Takeno456

Wow EA is getting taken to the cleaners this year. What goes around comes around I suppose.

JDWolfie
JDWolfie

EA being such a cheap ass. It's not like I can take pictures of random people without asking permission and add to the fact that you put them in a videogame that looks exactly like them.

deathstream
deathstream

Is it just me or did the same three judges make completely opposite rulings on nearly identical cases?

Tiger2004
Tiger2004

LOL, this is hilarious. Not that I'm an EA fanboy by no means but this is crazy. I don't know much about the law or i wouldn't have a crappy job, but the length kids will go these days to attack a developer for his or her likeness in a video game is absurd. When EA signed the agreement with the NCAA they do have the right to use likeness or you couldn't put logos on the game period. NCAA has the rights to these young adults when they attend the school. And when you shake hands with the NCAA under contract you get the likeness period in my book. Sounds like the laws are getting bent into a worse loop whole then its been in years. What's next people? I get it and even I wish EA had competition but this is not about that this its just attacking for money which is what this country has turn out to be. Everyone wanting a hand out.

gosushi
gosushi

Good to know. I might take EA to court over a character in BF 3, who I'm almost certain is a copy of me :D

kungfuj0
kungfuj0

@lils17 No.  What this is is a bunch of guys whose blood, sweat, and tears generate BILLIONS of dollars, none of which they get any part of.  They have every right to do what they are doing, and I hope like hell that they are successful at it.

LE_Funt
LE_Funt

@kungfuj0 Pay no mind to the scholarship they're getting. Serfs indeed.

telaros
telaros

@DrKill09 You're supposed to pay someone to use their likeness.

EA and the NCAA decided to make a deal that would allow EA to use the likeness of some known college kids. Since they are still in school and not many would notice with College football, as they likely thought, they went on to make MILLIONS without giving any of those people whose likeness they used to bank on any form of royalties and stuff like that.

NotCeo
NotCeo

@nurnberg I doubt it. I believe  EA has a license agreement with the NFL Player's Association (NFLPA). That allows them to use the likeness of NFL players. I would think the money from the deal goes towards the NFLPA, not individual players.

GamerGeek87
GamerGeek87

@nurnberg This is just guess work but I would imagine that the contract the players sign give permission for that, but I am wondering if that would also be true for college sports.

XxXeroxX
XxXeroxX

@Takeno456 You're fucking right it does! EA is getting a chin-full of beef and it's about time. 

Redsyrup
Redsyrup

@Takeno456 NFL Players to EA: Pay 10K dollars to unlock Player Likeness. What DLC comes around goes around.

KumaTenshi29
KumaTenshi29

@JDWolfie Well, you ~can~, you just run the risk of being sued if you use them in any way without their permission first in something like this.Otherwise, pictures are generally protected, how do you think magazines get away with candid shots of celebrities and what not?

stealth-logic
stealth-logic

@deathstreamNearly being the key word. The major difference is how they presented their cases. Here's a quote from the court ruling:

"We emphasize that this appeal relates only to Brown’s Lanham Act claim. Were the state causes of action before us, our analysis may be different and a different outcome may obtain. See, e.g.Keller v. Elec. Arts, Inc., No. 10-15387, slipop. at 6 (9thCir. July31, 2013) (affirming a district court’s ruling that EA had no First Amendment defense against the state-law right-of-publicity claims of former college football player Samuel Keller and other former college football and basketball players related to the use of their likenesses in EA’s college football and college basketball video games)."

-Saigo-
-Saigo-

@deathstream Care to share which cases? I was under the impression that the use of a likeness for monetary gains was a pretty cut and dry ruling.

TightNinja
TightNinja

@Tiger2004 This big time

It is a contract with the NCAA, therefore they have a ight to use the likeness of the players...just like NBA, NHL, NFL, FIFA...etc

GamerGeek87
GamerGeek87

@Tiger2004 Just like yourself I now quite little of how american law works, and probbably even less about sports. So I am wondering, do these collage players sign contracts with this NCAA in order to play. I mean its amateur sports not professional so depending on what the contract says(if such exists) I would think their likeness to be off limits.

ddoggbritt16
ddoggbritt16

@HyperWarlock that sucks,i like madden and get it whenever i get the chance and i am excited about the new battlefield

kungfuj0
kungfuj0

@LE_Funt @kungfuj0 Yes, they are getting scholarships, but most of these guys aren't even allowed to work somewhere like a McDonalds or whatever.  Not to mention the fact that literally BILLIONS of dollars are being made off of their blood, sweat, and tears.  BILLIONS, I say.  I'm not saying that they should be driving around in Ferrari's or whatever, but when the pie is THAT big and it is THEIR work that is making it happen, you bet your ass that they deserve a bigger piece of that pie than they are currently getting.

I can go for a while on this subject if you want....  Don't get me started...

DrowNoble
DrowNoble

@mrboone01 @DrowNoble If it was an exact picture of me and you were making money off it, then I would have legal recourse to recover money from you using my likeness without my permission.  However, if it was not specifically my likeness, then I have no say in it.  This is akin to commercials using a "leading brand" image that we recognize the shape of the bottle, but the label been changed.

NightOfInsomnia
NightOfInsomnia

@GamerGeek87 They do not sign contracts in college sports. It  states in the NCAA rules that collegiate players cannot received payment or any type of kickback for their involvement in the sport. I think most or all the players in this suit are already out of college.