Football Hall of Famer Jim Brown wants to stop a video game company from using an avatar that looks like him, plays his former position and has similar athletic skills. His is one of three cases pending before two circuit courts that raise the question of whether video games can use likenesses of real people without their permission. The lawsuits, brought by former college and professional football players against video game maker Electronic Arts Inc., spotlight a legal issue that has divided courts for decades: To what extent can public figures restrict others from depicting them in expressive works?

The three cases focus on whether the First Amendment or the right of publicity controls the use of images of real people in video games. The right of publicity is governed by state law — almost every state recognizes it by statute or through common law. For example, California’s statute recognizes a publicity right in a person’s “name, voice, signature, photograph, or likeness.”

The U.S. Supreme Court has tackled the issue of publicity rights just once, in a quirky 1977 case, Zacchini v. Scripps-Howard Broadcasting Co. Scripps-Howard broadcast Hugo Zacchini’s entire human cannonball act against his wishes. The court held, 5-4, that news media do not have First and 14th Amendment immunity for infringing a state-law right-of-publicity claim. Lawyers say the ruling was narrow, and unanswered questions enabled courts to craft a wide range of tests of a work’s constitutionality.

On July 13, the U.S. Court of Appeals for the Ninth Circuit heard oral arguments in two cases. Jim Brown, who broke records as a running back for the Cleveland Browns from 1957 to 1965, filed one, over Electronic Arts’ Madden NFL series. Former college quarterback Samuel Keller, who played for Arizona State University from 2003 to 2005 and for the University of Nebraska in 2007, brought the other, based on the company’s NCAA Football series.

In September, the Third Circuit will hear oral arguments in a case filed by Ryan Hart, a former Rutgers University starting quarterback who played for the school during the 2002-05 seasons, also over the NCAA Football series.

“The question is whether you can take someone’s whole performance of a lifetime and capitalize on it without making expressive comments” that give creative works First Amendment protection, said Ronald Katz, who heads the Palo Alto, Calif., litigation group at Manatt, Phelps & Phillips. Katz argued for Brown at the Ninth Circuit. “Can you take that and make money off of it without paying Jim Brown?,” Katz said.

The Zacchini ruling strongly supports the right of publicity, Katz said, because the court upheld his claims over a news organization’s First Amendment rights. “This case is worse because they took his whole life, his whole professional career. It wound up in that avatar. I think the Zacchini case is very helpful to us.”

Alonzo Wickers IV, a partner at Davis Wright Tremaine, has been coordinating Electronic Arts’ defense since Brown filed his case in early 2009. He said, “The bottom line is public figures, and others in the public eye, shouldn’t be able to restrict the ability to create expressive works about them, whether those are newspaper articles, novels, motion pictures, documentaries or video games.”

Wickers added, “There are a lot of rulings from federal courts and state courts that have recognized First Amendment protection for names and likenesses in documentaries, books and other traditional forms of expression. We have five or six different tests, which creates a lack of uniformity across the country “

The lower court standards developed post-Zacchini “have often been conflicting and confusing,” said Nathan Siegel, a partner at Washington-based Levine Sullivan Koch & Schulz, who filed a joint brief on behalf of more than two dozen amici who support Electronic Arts in each case.

That’s led to troubling cases where a person’s right of publicity has been characterized almost as a copyright, Siegel said. “Somebody’s name and somebody’s face is not a form of expression. Trying to create a right to control how somebody else depicts your name and your face just goes too far.”

The current crop of cases are an important opportunity for an appellate standard, said Julie Ahrens, an attorney and associate director of the Fair Use Project at Stanford Law School. Ahrens filed an amicus brief supporting Electronic Arts in the Hart case on behalf of three nonprofit organizations, including the Digital Media Law Project, and 10 individual law professors. “We’re looking for a clear, predictable rule that limits the application of publicity rights and protects free speech rights,” Ahrens said.

The different court tests make it difficult to figure out if a motion picture or video game can withstand legal challenges around the country, Wickers said.

Electronic Arts hopes the Third and Ninth circuits will agree that the company’s uses of the players’ likenesses are entitled to First Amendment protection.

But disagreement or the endorsement of different tests could pave the way for Supreme Court clarity, Wickers said. “It would be helpful to have a coherent national test to apply.”

Even the three cases against Electronic Arts by the same type of plaintiff have taken different legal routes.

Judge Florence-Marie Cooper of the Central District of California dismissed Brown’s case, which alleged trademark infringement and state right-of-publicity violations, in September 2009.

In February 2010, Judge Claudia Wilken of the Northern District of Cali­fornia denied the company’s motion to dismiss Keller’s case and a special motion to strike Keller’s right-of-publicity claims under California’s anti-SLAPP statute.

Judge Freda Wolfson of the District of New Jersey granted summary judgment to Electronic Arts in September 2011. She held that the First Amendment’s transformative test “best encapsulates” how to properly balance the competing interests in this case, but Electronic Art’s use of Hart’s likeness was protected under a few different tests.

REAL-LIFE SETTINGS

Much of the debate is about whether Electronic Arts’ use of the players’ characteristics is transformative, like other creative works that enjoy First Amendment protection. “Books and movies depict individuals in their real-life settings and video games should be no different,” Ahrens said.

In oral arguments in the Keller case, his lawyer, Steve Berman, managing partner of Seattle’s Hagens Berman Sobol Shapiro, said, “There’s no creativity here and no story in the products.…It’s just taking a likeness and letting someone use that likeness without telling a story.”

If Electronic Arts were given absolute First Amendment rights to use the players’ characteristics, that would upset the balance struck over the years between the demands of the Constitution and the rights of public figures who have a reputation, fame or prominence in a field, said Michael Rubin, a partner at Altshuler Berzon in San Francisco, who has been tapped to argue Hart’s case. Rubin also takes issue with Electronic Arts’ claim that it doesn’t need the license it signed with the National Football League Players’ Association. “If successful, this argument would enable any of Electronic Arts’ competitors to use the same content for free by claiming the cloak of constitutional protection,” he said.

Wickers said the license gives the company access to information from assistant coaches, body scans of current players and promotional benefits. The test is what the First Amendment allows, not “whether or not they thought having a license agreement would be useful for some other reason, or whether they simply wanted to avoid a fight,” said Davis Wright partner Kelli Sager during the Keller oral arguments. Sager also argued for Electronic Arts in the Brown case. Both cases were before Ninth Circuit judges Jay Bybee and Sidney Thomas, and Judge Gordon Quist of the Western District of Michigan, who sat on the panel by designation.

The Ninth Circuit’s first oral arguments in the cases were held in February 2011, but the court scheduled another round after Judge Pamela Ann Rymer, a member of that panel, died last September.

In the long run, a judicial consensus about these questions will be useful as future courts inevitably confront the same issues in new contexts, Rubin said. “This affects the video gaming industry, to be certain, but also every medium including media that we can’t yet imagine, given the rapid technological developments that enable companies to digitally recreate hyper-realistic images of public figures.”

Sheri Qualters can be contacted at squalters@alm.com.