As I harken back to my days on the gridiron at the University of Oregon, I recall the (all too numerous) times when my fellow teammates, who are more like brothers, and I would find every way possible to avoid those trips to the library to study for an upcoming exam. Typically, we would all file into someone’s apartment, hook up the Sega Genesis or Nintendo (gosh, am I that old), and battle it out in the virtual football world of Madden ’95. The cool thing about this video game would be the opportunity to “play” yourself on the field. By this I mean, we would get to pick our team – the University of Oregon – then go through the roster and find our number, and give us ungodly talent which we likely did not possess.
In what one would characterize as a “blast from the past,” an appeal is set for this Tuesday (Feb. 15th) in Pasadena, CA, in front of the Ninth Circuit Court of Appeals. The case is between a former NCAA player, Sam Keller, who played at the University of Nebraska, and the NCAA and Electronic Arts, Inc., (“EA”) as co-defendants. Last February, 2010, U.S. District Court Judge Claudia Wilken refused to grant EA free speech protection and dismiss the lawsuit. EA argued that it uses the players’ images to create works of art much in the same way authors, filmmakers and songwriters insert real people in novels, movies and songs. Judge Wilken ruled against EA, saying the company didn’t sufficiently “transform” the players’ images to qualify for First Amendment protection. She said EA’s argument that it removed the names of the players from the game wasn’t enough because it was obvious who the nameless images represented real people. For example, the virtual player wears the same jersey number, is the same height and weight and hails from the same state, Wilken said.
EA and the NCAA appealed and are joined by the Hollywood studios, media companies and other organizations such as the Comic Book Defense Fund who fear that Wilken’s ruling, if allowed to stand, will severely stifle artistic expression. EA’s lawyers, for instance, predict the demise of movies such as “Forest Gump” that rely heavily on the free use of celebrity images to further a narrative. “Documentarians, biographers, filmmakers, novelists, photographers, songwriters, and many others do exactly what the district court said is not protected: they create expressive works that realistically depict individuals and/or refer to them by their actual names,” EA’s lawyers wrote in their appeal. Allowing the players’ lawsuit to go forward will threaten future movie productions, Motion Picture Association of America wrote in support of EA.
I can almost remember verbatim the conversations we would have has we pushed the keypad buttons in earnest. We would always say something to the effect, “Man, these people are making money off of us, and what do we get in return.” Well, after 17 years, my friends and I may have that question answered. Acknowledging my biases in this case, it is my personal hope that something good will come from this for all the thousands of players with whom their images and likeness were used to turn EA into a billion dollar company. The lawyer in me thinks it’s a long shot, and to not quit my day job. Good Luck Sam!
*Parts of this blog were courtesy of The Associated Press and Mr. Paul Elias.