The Electronic Arts (EA) Company is no stranger to lawsuits filed by both college and professional athletes claiming the use of their likeness without permission. The EA Sports label produces games such as Madden NFL, NCAA Football, and NCAA Basketball. EA claims that their games are expressive works of art and it is within their first amendment rights to create players with similar characteristics as celebrity athletes while the opposing side argues that “When doing a venture strictly for commercial profit, that’s not the First Amendment. That’s just taking a guy’s basic identity and using it to make a profit” (Radd).
Court rulings appear to be inconsistent in their support of EA’s argument that the use of players based on appearance and stats without use of their names is a right of free expression. The latest lawsuit filed by Ryan Hart accusing EA of using his likeness in their NCAA Football game was dismissed in favor of EA although a previous case filed by Nebraska quarterback, Samuel Keller resulted in favor of Keller. “A range of U.S. states have devised legislation aimed at preventing unauthorized commercial use of an individual’s name or likeness giving that person an exclusive right to license the use of the identity for commercial purposes” (Caslon). What complicates the matter with college athletes is the fact that they sign-off on their commercial rights when permitting the NCAA to use their images to promote the organization. The questions that may be argued are whether EA’s agreement with the NCAA resulting in promotion or profit, and is the use of their likeness defendable under intellectual property rights? On the opposing side, does the First Amendment protect EA’s use of their identity as a matter of creative expression?
“Intellectual property is intangible property that is the result of creativity, such as patents, trademarks, and copyrights” (Williams). One of the biggest issues facing an athlete is protecting their image. Athletes, whether professional or amateur, should be careful in signing-off on rights for use of their image. While the use of their likeness are protected under various intellectual property laws, such as trademarks or branding, once they sign a contract, it becomes more difficult to defend. In the case of the NCAA and EA, it is clear that both organizations are making a profit at the expense of the athlete. If the athletes are signing a contract with the NCAA to use images strictly for promotional purposes, the right thing would be to compensate them in some way.
The Supreme Court’s ruling in the June 2011 case, Brown, Governor or California vs. Entertainment Merchants Association, supports EA’s argument that video games are a form of creative expression. Regardless, any sports fan who plays an EA Sports game can identify players with or without the use of their names, so at what point does the claim of creative expression become nothing more than a way to hide behind the First Amendment? It appears at this point, the decision is still up to a divided court system to make the decision if EA’s protection under the First Amendment overrules the rights of athletes to control and protect the use of their image.
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