That’s the question behind a class-action lawsuit aimed at video game publisher Electronic Arts. Sam Keller, a former quarterback at Arizona State, is bringing the case claiming that Electronic Arts profited from the use of his image and the images of other college athletes in their NCAA Football and NCAA Basketball video games. Amateur rules prevent the use of athletes’ names in commercial products but the games have the same team colors, team numbers, body-types and even athletic moves of the actual college athletes.
The case if blowing up beyond the right to use images of college athletes in video games. A ruling in the case could set a First Amendment precedent defining when a person’s right to control his image trumps the free-speech rights of others to use it.
An early attempt by Electronic Arts to have the case thrown out was rejected by US District Court Judge Claudia A Wilken. Judge Wilken argued that Electronic Arts did not sufficiently “transform” the images into a work that would qualify as free speech.
Major media companies, The Motion Picture Association of America, the Gannett Company, ESPN, Viacom, are lining up in support of Electronic Arts.
Keller has support from significant organizations too including the players unions for professional baseball, basketball, football, hockey and soccer. Each has filed a brief supporting Keller. Keller also has the support of the Screen Actors Guild, the AFL-CIO, and the American Federation of Television and Radio Artists.
Nathan Siegal, who represents the media companies has said…
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
Representatives for the athletes and other famous figures say Electronic Arts has gone too far. Duncan Crabtree-Ireland, the general counsel of the Screen Actors Guild said
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.
Some scholars believe this case could eventually land in the US Supreme Court.