|LAW | July 31, 2013, 3:20 p.m. ET|
Appeals Court Says Ex-College Stars Can Sue Videogame Maker Electronic Arts
Football and Basketball Players Protested Use of Their Likenesses
By JOE PALAZZOLO
A federal appeals court on Wednesday cleared the way for a group of college athletes to sue Electronic Arts Inc. for allegedly stealing their likenesses for its videogames.
The ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco advanced a claim by former Arizona State University quarterback Sam Keller and other ex-athletes, who allege EA used their images in NCAA Football and EA's NCAA basketball games.
EA's videogames are coveted for their attention to detail. NCAA Football represents college players with look-alike avatars with the same jersey number, height, weight, build, skin tone, hair color and home state. In the 2005 edition of the game, the virtual starting quarterback for Arizona State shared the real Mr. Keller's physical traits, play style and facial features.
EA's lawyers argued that the depiction of college players in its games amounts to expression protected by the First Amendment.
But to earn that protection under California law, EA had to show its game added creative elements that transformed the avatars into something more than a "mere celebrity likeness or imitation," wrote Judge Jay Bybee for the majority.
EA's use of Mr. Keller's likeness, he said, "does not qualify for First Amendment protection as a matter of law, because it literally recreates Keller in the very setting in which he has achieved renown."
A spokesman for EA said the company was disappointed by the ruling and would seek "further court review." EA could ask the Ninth Circuit to rehear the case or petition the U.S. Supreme Court. If the courts decline, the suit would move on to trial.
The ruling was the second this year in which a federal appeals court said the company couldn't use the First Amendment as a shield against legal claims.
In May, the Third U.S. Circuit Court of Appeals held that former Rutgers University quarterback Ryan Hart could sue EA in a bid to collect some of the profits the company made from the 2004, 2005 and 2006 installments of NCAA Football, which featured his likeness without his permission.
The lawsuits are part of a broader legal campaign that, if successful, could force the National Collegiate Athletic Association to tweak its longstanding rule that college athletes can't profit from their celebrity. Electronic Arts pays the Collegiate Licensing Co., the NCAA's licensing arm, to use school and team names, uniforms and even fight songs. But the company doesn't compensate college players.