The New York times reported earlier this week on the Sam Keller/EA Sports lawsuit:
"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.
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."
'“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.” '
We haven't even seen the case move forward too far and people are already talking Supreme Court? Well this would mean we won't see a resolution for quite some time, which is either good or bad news, depending on how you look at it.
"'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.'
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."
"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. "
The case hasn't progressed too far yet, but with everyone lining up on each side of the case -- we are going to see a very interesting set of arguments from both sides of the fence. I know gamers are interested in Electronic Arts winning this case, but there is indeed a much bigger picture at work here.
The argument from the Keller Camp that sports video games aren't the same as other games, and that prior court rulings that video games are protected speech, is an interesting one. If Keller wins, the NCAA and EA will have to fork over some major money and then EA will have to either start licensing real players for NCAA or EA will have to create completely generic rosters in every sense of the word.
However, should EA win, from what Crabtree-Ireland said above -- you would no longer have to license likenesses in sports games. So while you would still have to license teams, players would be fair game to be used without a license fee of any kind.
It would be good for sports gamers if EA won in that sense, but it would also be exceptionally bad if you are someone who might be used in a creative production of any kind. This is indeed a huge case and it should be the most interesting and groundreaking case for video games perhaps ever.
As always, we'll be on top of it!
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