kellerIn a pair of lawsuits filed by former athletes against gaming company Electronic Arts, let’s call the score tied, with appellate judgments recently decided in favor of each of the parties.

The U.S. Court of Appeals for the Ninth Circuit ruled in favor of former Arizona State quarterback Samuel Keller, rejecting EA’s motion to strike his right of publicity claims; the appellate court in Los Angeles,  in a second decision, sided with EA and upheld the dismissal of a lawsuit brought by Jim Brown, the National Football League Hall of Famer over the video game makers use of his character in its Madden NFL product.

In the Keller decision, the court scrutinized the use of the plaintiff’s likeness as an Arizona State star in 2005 in EA’s 2005 edition of its NCAA Football video game. Keller said EA failed to pay him for incorporating him in its game and filed a class action lawsuit for violations of his right of publicity under California Civil Code § 3344 and California common law.  A district court denied EA’s motion to strike the complaint under California’s anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16.

The appellate court rejected EA’s First Amendment and fair-use defenses.  EA had argued the lower court erred in ignoring transformative elements of the game as a whole, as required to prove both defenses.  The court also found EA’s use of college athletes’ likenesses in its video games is not, as a matter of law, protected by the First Amendment. It rejected EA’s suggestion to apply the Rogers test, as developed in Rogers v. Grimaldi,  where another appellate court sought to balance First Amendment rights against claims under the Lanham Act.

U.S. District Judge Jay S. Bybee concluded that state law defenses for the reporting of information does not protect EA’s use, writing in the 2-1 appellate ruling: “Put simply, EA’s interactive game is not a publication of facts about college football; it is a game, not a reference source.”

As the Keller case and other similar litigation zigzags through the courts, the NCAA recently announced that it is ending its deal with EA for the football video game.

Ali PremiereIn the Brown decision, the former Cleveland Brown’s player had asserted that EA violated § 43(a) of the Lanham Act by using his likeness in EA’s Madden NFL series of football video games. Brown, an NFL star running back from 1957 to 1965 and Hall of Famer, went on to become an entertainer and public servant, thus becoming a public figure whose persona can be deployed for economic benefit, the appellate court said.

This same court, however, departed from its rejection of the Rogers test in the Keller decision; here it found the test appropriate because Brown’s suit arose in Lanham Act claims.  The judges found Madden NFL deserving of the same First Amendment protection as granted literature, plays or books.  The appellate judges agreed with the lower court, finding Brown’s likeness is artistically relevant to the games, noting EA prides itself on the extreme realism of the games. The appellate court, ultimately, found an absence of claimed facts to support the assertion that EA explicitly misled consumers as to Brown’s involvement with the games.

Even as the Brown case and similar other litigation has wound through the courts, the NFL has moved to defuse the potentially explosive issue of the commercial exploitation of its former players’ likenesses with a recent $42 million proffer to retirees, a deal that reports say has proven divisive among the alums — many whose careers occurred before the game’s big money days and who are in poor health and in need of financial help.

If you haven’t been strapped to a console and may be unfamiliar with Madden NFL: