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EA Loses Bid to End Athletes’ Suit Over Use of Likenesses

July 31 (Bloomberg) -- Electronic Arts Inc. lost a bid to block lawsuits for profiting from using college athletes’ likenesses free without their permission as a federal appeals court said the conduct isn’t protected by the First Amendment.

A three-judge panel did hand the company a victory in a related case by upholding the dismissal of a lawsuit by National Football League player Jim Brown over the use of his likeness in EA’s “Madden NFL.”

In a 2-1 ruling today in a case brought in 2009 by former Arizona State University quarterback Sam Keller, the court said EA wasn’t protected against Keller’s suit because its “NCAA Football” games, which use athletes’ height, weight, hair color and skin tone, though not their names, “literally creates Keller in the very setting in which he has achieved renown.”

Electronic Arts argued that the constitutional guarantee of free speech means it doesn’t need permission to use the images of former National Collegiate Athletic Association players if its games contain enough other creative elements to make it more than just a depiction of a celebrity. Movie studios and newspaper publishers filed briefs in support of EA’s argument.

The appeals court panel said there weren’t enough elements to transform the images into anything other than Keller.

“Keller is represented as ‘what he was: the starting quarterback for Arizona State’ and Nebraska, and ‘the game’s setting is identical to where the public found [Keller] during his collegiate career: on the football field,’ Judge Jay Bybee wrote, upholding a decision by a judge in Oakland, California.

Players’ Accusations

Former student basketball and football players allege that Electronic Arts and the NCAA, the governing body of most U.S. intercollegiate sports, conspired to use their likenesses in video games without their permission and without paying them, violating antitrust law and their rights of publicity.

U.S. District Judge Claudia Wilken in Oakland is considering whether to certify the lawsuits as class actions, or group, lawsuits, enabling thousands of current and former NCAA athletes to seek millions of dollars.

In a separate opinion, the appeals court upheld the dismissal of former National Football League player Jim Brown’s lawsuit alleging unauthorized use of his likeness in EA’s “Madden NFL.”

“Brown’s likeness was artistically relevant to the games, and there were no alleged facts to support the claims that Electronic Arts explicitly misled consumers as to Brown’s involvement with the games,” a unanimous court panel ruled.

Protected Use

Brown, a former Cleveland Browns running back, accused the company of false endorsement based on unauthorized use of his likeness in “Madden NFL.” U.S. District Judge Florence-Marie Cooper in Los Angeles agreed with Electronic Arts that its alleged use of Brown’s likeness was protected by the First Amendment.

“We are pleased with the outcome regarding Jim Brown’s likeness, but equally disappointed with the ruling against First Amendment protection,” John Reseburg, a spokesman for Redwood City, California-based Electronic Arts, said in an e-mail. The company will seek further review of the decision, he said.

Ronald Katz, an attorney for Brown, didn’t immediately respond to an e-mail seeking comment about the ruling.

The cases are Keller v. Electronic Arts, 10-15387, and Brown v Electronic Arts, 09-56675, U.S. Court of Appeals for the Ninth Circuit, (San Francisco).

To contact the reporter on this story: Karen Gullo in San Francisco at kgullo@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net.

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