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Federal Judge Rules Video Games are Protected "Expressive Works"

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The news here isn't that Jim Brown, a man who certainly knows his rights, is supporting college players suing Electronic Arts over the use of their likenesses. It's how he lost his own claim against the Madden series publisher.

On Wednesday, a federal district court in Los Angeles dismissed Brown's claim against Electronic Arts for the use of his image in its Madden NFL series. Judge Florence Marie-Cooper essentially found that video games are "expressive works, akin to an expressive painting that depicts celebrity athletes of past and present in a realistic sporting environment." Such works are protected by the First Amendment.


This would cover the use of Jim Brown's likeness - that of a living person, remember - in a commercial work. Lawyers for Sam Keller, the NCAA footballer who sued over the use of his likeness in EA Sports' NCAA football franchise, say that this ruling has no bearing on their suit. Indeed, it's at the federal district level and may be appealed. But a judge interpreting the First Amendment to protect video games in this way is certainly noteworthy.


Brown wants to file a friend-of-the-court brief in Keller's case, which is before federal court in California's Northern District, up in Oakland. Brown's attorney is also the same one who represented retired player Herb Adderley - the lead plaintiff in a successful $26 million class action lawsuit against the NFL Players Association over its licensing of retired players' likenesses to EA Sports for the Madden series.

Ronald Katz, the lawyer representing Adderley and Brown, wrote in a filing Monday that allowing EA Sports to profit from the use of athletes' likenesses without their permission means "EA could use for free the identity of thousands of present and former collegiate and professional athletes, eliminating any legal reasons for EA to continue any licensing, and giving it a windfall worth hundreds of millions of dollars."


A judge in California's Northern District will hear arguments on the Keller case on Nov. 17.

Again, this is a district-level ruling that has not been appealed. Bigger picture, the "expressive works" finding, if upheld, could have significantly larger implications for video games, well beyond sports titles.

Retired NFL Players Seek to Join EA Lawsuit [Associated Press via Game Politics]