The 9th Circuit Court of Appeals on Wednesday rejected Electronic Arts’ efforts to dismiss a suit brought by Samuel Keller and other college football players, ruling that the video game developer had no First Amendment defense against claims that they violated the athletes’ rights of publicity in using their likenesses in the NCAA Football titles.
Judge Jay Bybee, writing for the 2-1 majority, said that EA’s use of Keller’s likeness was not protected by free speech because it “literally recreates Keller in the very setting in which he has received renown.” The upholds a decision from a district court judge who refused to dismiss Keller’s class-action suit.
Keller was the starting quarterback for Arizona State University in 2005, and later transferred to the University of Nebraska, where he played in the 2007 season.
EA’s “NCAA Football” games, in creating avatars of teams, omits players names on jerseys and assigns home towns that differ from players’ actual home towns. But the likenesses were similar enough for Keller to file a class action suit along with eight other plaintiffs, including football and basketball players.
In another case, the 9th Circuit did side with Electronic Arts in dismissing retired pro football player Jim Brown’s claim that the use of his likeness in the “Madden NFL” series of games violated trademark law. In a 3-0 ruling, the judges said that Brown’s likeness was “artistically relevant” to the games and that “the public interest in free expression outweighed the public interest in avoiding consumer confusion.”
The 9th Circuit decision in Keller’s case is another boost to performers who advocate robust rights of publicity laws in many states.
In May, another former college football player, Ryan Hart, won a ruling in the 3rd Circuit Court of Appeals, which held that he could pursue his case claiming that EA violated New Jersey’s right of publicity law in using his likeness in the NCAA Football game.