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Image Rights vs. Free Speech in Video Game Suit

When Sam Keller, a former quarterback at Arizona State, sued the video game publisher Electronic Arts last year, he was seeking compensation for himself and other college athletes whose names were not used but whose images he contended were being illegally used by the company.

Sam Keller
Getty Images
Sam Keller

But to the media conglomerates, athletes, actors, First Amendment advocates and others who have recently weighed in on the case, Keller’s lawsuit is about much more than video games. The outcome of a recent appeal filed by Electronic Arts, their lawyers say, could rewrite the rules that dictate how much ownership public figures have over their images — and the extent to which outside parties, including media and entertainment companies — can profit from them.

The case is drawing attention because it gets to the heart of a highly contested legal question: when should a person’s right to control his image trump the free-speech rights of others to use it?

“It’s one of the most important clashes in all of First Amendment law, and one of the more unsettled areas,” said David L. Hudson Jr., a scholar with the First Amendment Center at Vanderbilt University. “I think it’s an area that is crying out for Supreme Court review in the right case.”

It is also an area about which the Supreme Court has remained largely silent. The court has taken up the right-of-publicity issue only once, in 1977, when it ruled in favor of Hugo Zacchini, a circus performer who originated the human cannonball act and who sued the owner of a television station that broadcast his entire act without his consent. First Amendment lawyers say the decision has been difficult to apply, because it did not establish a clear line between the right of publicity and the First Amendment, leaving courts to make their own rules about how such cases should be evaluated.

“The implications here are enormous,” said Rob Carey, Keller’s lawyer. “I don’t think we anticipated such a drastic, far-reaching defense, and then when EA Sports did that, that’s when everybody started to cover their own turf.”

In a class-action lawsuit filed in 2009, Keller sued Electronic Arts, the National Collegiate Athletic Association and the Collegiate Licensing Company, claiming that they illegally profited from the images of college players portrayed in the games NCAA Football and NCAA Basketball. Because N.C.A.A. amateurism rules prohibit the endorsement of products by college athletes, the players’ names are not used in the video games. But in most cases, the virtual players have the same jersey number, height, weight, home state — even playing style — as the real college athletes.

In February, Claudia A. Wilken, a United States District Court judge, rejected a request to dismiss the case, arguing that Electronic Arts did not sufficiently “transform” the images into a work that would qualify as free speech.

Since Electronic Arts filed its opening brief in the appeal in August, more than three dozen parties have signed their names to briefs supporting each side. Those who support Electronic Arts claim that free speech rights permit the use of the athletes’ images. But Keller and his supporters argue that the video games in question are not protected by the First Amendment because the company was using the likenesses of college athletes for purely commercial gain. The Motion Picture Association of America, the Gannett Company, ESPN, Viacom, video game publishers and reality-television production companies have aligned themselves with Electronic Arts, as have two advocacy groups, the First Amendment Coalition and the First Amendment Project. But Keller has powerful allies of his own: the players unions for professional baseball, basketball, football, hockey and soccer filed a brief supporting Keller. Also backing Keller are the Screen Actors Guild, the A.F.L.-C.I.O., the American Federation of Television and Radio Artists, the company that owns the rights to Bob Marley’s work and heirs of John Steinbeck. In an odd twist, one of the groups that has sided against Electronic Arts — the N.F.L. Players Association — has a multimillion-dollar licensing deal allowing the company to use its members’ names and likenesses in the video game Madden NFL.

The next step in the appeal is for Electronic Arts to file a reply to Keller’s brief. Several courts have ruled that video games should count as protected speech. Earlier this month the Supreme Court heard arguments about whether a law banning the sale of violent video games to minors violated the First Amendment. Keller and his supporters have said that sports video games should not be protected because they are simply trying to replicate real life and are not creative in nature.

“We have a new medium that didn’t exist 20 or 30 years ago, and I think we’re starting to see these issues sort out,” said Alonzo Wickers, a lawyer for Electronic Arts.

In its appeal, Electronic Arts argues that Wilken mistakenly considered only Keller’s image and not the entire game, which qualifies as a creative work. The court should treat the case no differently than if “Keller had sued a filmmaker who used his photograph in a documentary about college football,” lawyers for Electronic Arts wrote in their appeal. Famous people have long been incorporated into artistic works, they argue: Paul Simon mentions Joe DiMaggio in the song “Mrs. Robinson,” for example, and the makers of the movie “Forrest Gump” inserted the title character into old footage to simulate conversations with historical figures.

“Treating the right of publicity as if it were a copyright — as if you could copyright your name and face — goes too far, and it would give people too much power to control the First Amendment speech of others,” said Nathan Siegel, who represents the media companies.

But representatives of athletes, actors and other famous figures say they deserve to be compensated for use of personas they have worked hard to develop, and say Electronic Arts goes too far. If Electronic Arts were to prevail, “the real-life consequence would be that anybody making anything other than a television commercial or a print ad — what is very clearly commercial speech — would essentially have the right to use people’s names and likenesses in those projects without any consultation,” said Duncan Crabtree-Ireland, the general counsel of the Screen Actors Guild.

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