Sam Keller v. EA Sports, et al.: Round II

February 14, 2011

Highly recruited QB Sam Keller, who went from ASU to Nebraska, but failed to make the 2008 Raiders roster, is in the middle of a legal battle that could certainly have major implications on artistic expression.

On Tuesday, February 15, 2011, all eyes will be on the 9th Circuit Court of Appeals as Sam Keller’s team of lawyers will defend the district court’s ruling that EA Sports and the NCAA owe Keller and former college football player royalties for portraying their image and likeness in the popular EA Sports NCAA Football game franchise.

EA Sports releases its college football game annually and uses the success of college athletes to create a more realistic game. These virtual players are an exact replication of the real players when it comes to jersey numbers, height, weight, and athletic ability.

EA argues that it uses the players’ images to create works of art just like authors, filmmakers, and songwriters use real names of known people to create books, movies, and songs. “Documentarians, biographers, filmmakers, novelists, photographers, songwriters, and many others do exactly what the district court said is not protected: they create expressive works that realistically depict individuals and/or refer to them by their actual names,” EA’s lawyers wrote in their appeal. Keller’s attorney responded by saying, “there is a big difference between those examples and a video game based in realism…” “They’re whole game is realism. Realism is the opposite of creative expression.”

One group that is particularly interested in this outcome is Hollywood. Any ruling against EA Sports will adversely affect Hollywood’s ability to produce artistic expression going forward.

Regardless of the 9th Circuit ruling, this case will certainly see the steps of the US Supreme Court. In the meantime, EA Sports and the NCAA will continue to share undisclosed royalties.

Sam Keller, who has the support of many players’ unions to include MLB, NHL, and NFL, is anxiously waiting on the outcome of this case, not because of the financial windfall, but it will be a landmark decision that will have major financial implications on the use of known figures going forward.

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