Wednesday, May 20, 2009

LTG 05-13-09: Keller v. EA

From the Omaha CityWeekly, week of May 13, 2009.

http://omahacityweekly.com/article/2009/05/13/law-talking-guy

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Sam Keller’s Hail Mary

By: Patrick Runge
Issue: May 13, 2009


Sam Keller, Nebraska’s starting quarterback in the 2007 season, wanted to strike fear in the hearts of opposing defenses. Now, he’s striking fear into the hearts of video game fans throughout the country. Keller has filed suit against Electronic Arts (EA), maker of the wildly popular NCAA Football video game series.

For those of you not familiar, EA makes a series of college football video games, which bill themselves as an authentic college football experience. The names and logos of the teams are licensed from the National Collegiate Athletic Association (NCAA). Further, EA goes to great lengths to simulate the rosters of each team as close as possible to their real-life counterparts without actually using the players’ names.

Keller is claiming, for himself and any other athletes in the same position, that EA is using his likeness without his permission to make money, and therefore Keller should receive a portion of those profits. The legal theory he is pursuing is called a “right of publicity,” meaning basically that you have the right to control how your image is used by other people.

Generally, to be successful in these types of cases, a plaintiff like Keller would have to prove that his “image or likeness” was used to someone else’s advantage, that he did not agree to the use of that image, and what damages he suffered as a result.

This is a unique case, to be sure. It’s been decided already that a replica college football jersey with a player’s number (but not name) on it does not violate that player’s right of publicity. Sure, if you buy a No. 5 Virginia Tech jersey, you know it’s Tyrod Taylor’s number, but that’s not a close enough link to let Taylor win a lawsuit against the jersey’s manufacturers.

You’re also stuck with a God-awful maroon and orange shirt, but that’s your problem.

The simulated players in EA’s games, however, go beyond just the player numbers. While there are no actual pictures of the player’s faces, their height, weight, uniform style, hometown and almost every other identifier other than name are reproduced in the game. Keller is claiming that all these added details mean that the simulation has crossed the line into a “likeness” of the player, and therefore prevent EA from using the image without the player’s permission.

Now, this is the point where I could be snarky and say that EA’s version of Keller couldn’t be a likeness because when I played the game, Keller’s simulated player could complete a pass over 20 yards and actually won a few clutch games, as opposed to the real-life version. But I won’t, because I actually think Keller got a raw deal from then-coach Bill Callahan and I respect how Keller handled himself during that season.

But even though I think his case isn’t the strongest, let’s concede the point that the video game version of Keller is indeed a “likeness” of Keller for purposes of the law. Even if he wins on that ground, I don’t think he’s going to be successful.

The sticking point I see is the last element, the requirement to prove damages. In addition to all the factual questions, Keller is going to have to prove how he was harmed by EA’s “illegal” use of his likeness.

Now, keep in mind, the only reason EA would want to use his likeness is if he was playing for a Division I NCAA football team. NCAA athletes have to maintain their amateur status to remain eligible to compete in NCAA-sanctioned activities, and one thing that could end that eligibility is if a player received money for the use of their likeness.

That puts Keller in a very challenging catch-22. Keller’s status as an NCAA athlete means that he was prohibited from receiving any monetary benefit for the use of his likeness – and the lost monetary benefit for the use of his likeness is exactly what he would have to prove to determine what damages he would receive from EA. On the flip side, if he did sign a contract to receive payment for the use of his likeness, then he wouldn’t be NCAA-eligible, and EA would therefore have no interest in the use of his likeness.

So, even if Keller or any other NCAA athlete is able to prove the other elements of their lawsuit, the athletes by definition could not receive any damages. The best they could hope for would be an injunction, meaning an order from the court prohibiting EA from using their likeness in any future games.

Now, I will admit my bias in this case. I’m an avid player of EA’s NCAA series of games, and I would be really sad if they couldn’t make the game as realistic as they do. But leaving that bias aside as much as possible, I think Keller’s likelihood of success is pretty small.

Or, to make a football analogy, I think this is a hail-mary pass for Keller. If so, rest easy fellow gamers. Watching Keller at Nebraska, you know how well (or not so well) he did with those.

Patrick Runge has practiced law in the Omaha area since earning his degree from Creighton University in 1994. He has also written for the Omaha Pulp, Millard Avenues and UNO’s Gateway. E-mail him at thelawtalkingguy@gmail.com.

1 comment:

Anonymous said...

Guy, could you PLEASE tell me the name of the case (or citation) deciding that a replica college jersey with player's number does not violate player's right of publicity?