A federal court struck down Electronic Arts’ First Amendment rights defense of artistic expression for a second time in a controversial lawsuit relating to the use of college athletes’ likenesses without their permission.
Photo courtesy of Ugur Akdemir (Unsplash.com)
The case, which may have far-reaching implications for college sports and video game makers, was originally brought against EA Sports by former Arizona quarterback Sam Keller in 2009. He alleged that the game manufacturer used his likeness without his permission, a charge that was also levied against EA Sports by Ed O’Bannon later in 2009. The cases have now been consolidated.
Although the game maker has alleged that it is protected by the First Amendment, the 9th U.S. Circuit Court of Appeals agreed with a lower court ruling that EA was not protected by free speech because the company created the likeness of Keller “in the very setting in which he has achieved renown.” The court also noted that the EA game had the “same height, weight, skin tone, hair color, hairstyle, handedness, home state, play style (pocket passer), visor preference, facial features, and school year as Keller.”
“Given that NCAA football realistically portrays college football players in the context of college football games, the district court was correct in concluding that EA cannot prevail,” Judge Jay Bybee wrote in the decision.
However, the dissenting opinion in the case may gave hope to those who agree that game makers can use player images under federal law. In an argument that may be used to further EA Sports’ appeal, dissenting judge Sidney Thomas wrote that the games have creative and transformative elements that “predominate over the commercial use of the athletes’ likenesses,” according to Yahoo Sports.
“We believe the reasoning in Judge Thomas’ dissent in that decision will ultimately prevail as we seek further court review,” said EA spokesman John Reseburg.
Before You Buy: Managing Real Estate and Permitting Risk for BESS Projects in New York and New Jersey
For developers pursuing battery energy storage system (BESS) projects, finding the right property is only the beginning. BESS site selection is as much a legal and transactional exercise as a real estate decision, with risk analysis central to the project’s ultimate success. Key Takeaways The core questions for BESS site selection in New York and […]
What Business Owners Get Wrong Before Meeting a Litigation Attorney
What should you expect when meeting a litigation attorney about a business dispute? You should expect to describe the dispute in your own words, hand over the most important documents, flag any deadlines or immediate threats, and leave with a clearer picture of the problem, what information is still needed, and the likely next steps. […]
Arbitration vs. Litigation vs. Mediation: What New Jersey Businesses Should Know Before Signing a Contract
Arbitration resolves disputes privately before an arbitrator whose decision is usually final, while litigation resolves them in court with full rights of appeal. Whether a business ends up in arbitration or litigation is often decided when it signs the contract, long before any dispute arises. Key Takeaways When facing a contract dispute, carefully consider your […]
Can You Own Part of a New Jersey Business Without a Written Agreement?
Can you own part of a business in New Jersey without a written agreement? Yes, it is possible. Under New Jersey’s Uniform Partnership Act, a partnership can arise when two or more people carry on a business as co-owners for profit, whether or not they ever intended to form one. Ownership doesn’t necessarily depend on […]
Crisis-Proofing Your New Jersey Business: Building a Crisis Response Plan Before You Need One
For New Jersey businesses, crisis preparedness should be viewed as a legal and operational function, not simply an emergency-management exercise. A well-designed crisis response plan can help preserve evidence, protect confidential communications, meet reporting obligations, limit unnecessary exposure, and prevent an already difficult situation from becoming a larger legal problem. Key Takeaways A serious crisis […]
Monmouth County's Next Development Wave: What Developers and Investors Need to Know
Monmouth County is entering a significant new phase of development. For those looking to acquire property or undertake a new project, understanding the market opportunity is only the beginning. The more important question is whether a particular property can actually be developed as contemplated and what approvals, agreements, and other conditions will be required to […]
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Sign up to get the latest from our attorneys!
Explore What Matters Most to You.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!
