Appropriation in Video Games


By Steve B.

The argument about whether college students athletes should be paid is long standing, and fierce debates have been going on from both sides for decades. However, in the case of Sam Keller v. Electronic Arts and the National Collegiate Athletic Association, there is a relatively new issue at hand — and it may have implications far beyond athletics.

The class action lawsuit was first filed in May of 2009 in U.S. District Court in San Francisco. Keller, a former quarterback for the Arizona State Sun Devils and the Nebraska Cornhuskers, sued Electronic Arts, a video game company, the Collegiate Licensing Company and the NCAA over the use of players likenesses in its video games. Keller claims that Electronic Arts knowingly uses the likeness of former and current collegiate athletes to increase profits.

Student athletes are not paid, they are given scholarships to attend schools which cover room and board as well as tuition costs and university fees. Depending on the type of scholarship, textbook costs may be covered as well. They are prohibited from participating in any commercial activity.

The district court ruled that Keller and other former college players were owed by Electronic Arts for being used in the video game series of NCAA Football.

Electronic Arts filed an appeal, in the 9th Circuit Court of Appeals, where the case is sitting at currently and many expect it will indeed reach the Supreme Court.

Electronic Arts defense in this case is that its games are creative works of art, and using a players likeness in this case is protected under the First Amendment. They never actually name the players in the games, instead opting for generic names like “QB #10” or “WR #88,” referring to the players position and jersey number. However, Keller’s side argues that these games are not creative, they are intended to be realistic representations of the real life sport and have no true “creative” imaginative side to them. Looking at the picture above, courtesy of the Los Angeles Times, it’s clear this was intended to be a realistic representation of Keller. The image on the right, Keller in NCAA Football 07, mimics what Keller looks like in real life to the left, down to the wrist bands on the arms.

District Court Judge Claudia Wilken sided with Keller on this issue. She said that the game did not do enough to “transform” the images of the players to qualify for First Amendment protection.

Since Electronic Arts is based in Rosewood, California, Keller filed his claim in California. In California, the right of publicity is protected by both common law and statute. Keller had to show, under common law, three steps. First, he had to show that Electronic Arts used his and other players identities, whether that be his name, voice or likeness. Second, he had to show that using his identity resulted in profitable and commercial gain for Electronic Arts. Finally, Keller also has to prove that all of this resulted in any type of injury to himself.

Keller asserts that while his name may not have been used in the video games, his likeness certainly was. His height, weight, age, position, jersey number and hometown were all accurately depicted, the only thing stopping it from fully representing Keller was that there was a “QB #9” on the back of his jersey in the game rather than his real last name. Keller also argues that in recent years, with new technology, Electronic Arts has been skirting the no-name issue by allowing a feature in their game called the “EA Locker.” This allows those who purchase of the video game to re-name and create rosters and upload them for anyone who has the game to download. In mere seconds, a person sitting down to play the game could have every college athletes name in the game.
Another issue that Keller brings up to prove the first point is about the audio commentary in these games. Just like in real life, there are play-by-play announcers and color commentators who provide a backdrop into what is going on during the game. In the NCAA football video games, the commentators will announce a player as their jersey number rather than their name. However, if anyone edited a players name to their real life counterpart, or downloaded a roster from the “EA Locker” feature, the announcers would say that players last name instead. Keller argues that Electronic Arts knowingly had their announcers read off last names of players in the recording studio, so that when edited, their names would be announced in the game. Keller says this feature is also adding to the realism, which in turn is helping in sales of the game. Not every player has his name recorded, but rather star players and those with common last names.

If the Court ultimately rules in favor of Keller, this would be a severe blow to Electronic Arts. They would either have to stop producing their annual college sports games, which have sales numbers in the millions, or continue producing them but be forced to use very generic players which would result in a major sales decrease. This is how Keller would prove that his and others likenesses are beneficial financially for Electronic Arts.

As mentioned earlier, there are implications in this legal battle that stretch beyond games and sports. Major corporations and organizations are taking sides on this issue, as many foresee this issue going all the way to the Supreme Court. The Motion Picture Association of America, ESPN, Viacom, Gannet publishers and Hollywood Studios are just some of the companies who are backing Electronic Arts in this case. These organizations argue that this will severely stifle artistic expression, and use examples with movies such as “Forrest Gump,” which uses celebrity images. They argue that under the First Amendment, they have the right, for creative purposes, to use the images of public figures.

The Screen Actors Guild, A.F.L.-C.I.O, the unions of Major League Baseball, the National Hockey League, and the National Football League, the American Federation of Television and Radio Artists and other athletes are backing Keller, claiming they have a right to control their public image they worked hard to create.

A previous case dealing with image likeness in the same Court of Appeals was WHITE v. SAMSUNG ELECTRONICS AMERICA, INC, 989 F.2d 1512 (1993). The 9th District Court of Appeals ruled in favor of the plaintiff, Vanna White from Wheel of Fortune, who sued Samsung over an ad that featured a robot wearing a wig and a gown who turned letters over on a board resembling that used in Wheel of Fortune. The court stated that if viewed individually, there was no real harm, but if viewed collectively, there was little doubt that it was Vanna White that was being portrayed in the ad.

Another case, this one more closely connected to the Keller case, was BROWN v. ELECTRONIC ARTS, INC, 722 F.Supp.2d 1148 (2010). James “Jim” Brown, a Hall of Fame running back in the NFL that played on the Cleveland Browns, sued Electronic Arts over using his image and likeness in their Madden football video game series. They again, in this instance, used retired players like Brown as part of a “throwback” selection of teams to choose among. Browns career statistics and likeness were used, and just like in the NCAA games, his last name was not used.

Ultimately, I think the district court ruling will be upheld in the appellate courts hearing. This would then propel the case to the Supreme Court, who, due to the extenuating circumstances surrounding the case and all of the far reaching implications it has, would have to hear the case. In the end, whatever the Supreme Court decides will be a landmark decision in this ongoing legal battle, and it will have an affect on all forms of media.
*Image courtesy of the Los Angeles Times