Electronic Arts Inc. and its lawyers at Davis Wright Tremaine and Keker & Van Nest got mixed tidings Wednesday in a pair of decisions from the U.S. Court of Appeals for the Ninth Circuit. But the news was mostly bad for the video game maker, and nothing but good for plaintiffs lawyer Steve Berman of Hagens Berman Sobol Shapiro.
In a closely watched case Berman is spearheading on behalf of a group of former NCAA college athletes, a divided Ninth Circuit panel ruled 2-1 that EA's use of the athletes' likenesses in video games isn't shielded by the First Amendment. But in a separate unanimous decision from the same Ninth Circuit panel, EA fended off trademark claims from NFL legend Jim Brown, who accused the company of misleading consumers about his involvement with the Madden NFL series of games.
EA was represented by counsel from Davis Wright and Keker in both cases. Davis Wright Tremaine's Kelli Sager argued the appeals before the Ninth Circuit last summer. She wasn't immediately available to comment on Wednesday.
Berman said he now plans to move for summary judgment as quickly as possible in the underlying litigation. "The First Amendment defense was one of their strongest," Berman told us. "There's not any serious dispute that they use the players likenesses."
The challenge to EA's NCAA basketball and football game franchises began in 2009, when former college athletes including ex-Arizona State University quarterback Samuel Keller and former UCLA basketball star Ed O'Bannon filed class actions claiming EA had misappropriated their likenesses without compensation. The Keller and O'Bannon lawsuits were later consolidated before U.S. District Judge Claudia Wilken in Oakland. Wilken refused to toss the cases in February 2010, rejecting EA's arguments that its depiction of the players was "transformative" and thus protected by the First Amendment.
Writing for the majority on Wednesday, Ninth Circuit Judge Jay Bybee affirmed Wilken's ruling, finding that EA's First Amendment argument failed because the company "literally recreates Keller in the very setting in which he has achieved renown."
"In the 2005 edition of the game, the virtual starting quarterback for Arizona State wears number 9, as did Keller, and has the same height, weight, skin tone, hair color, hair style, handedness, home state, play style (pocket passer), visor preference, facial features, and school year as Keller," Bybee wrote.
Wednesday's decision follows a similar ruling by the U.S. Court of Appeals for the Third Circuit in a case brought by former Rutgers University quarterback Ryan Hart. In May a split Third Circuit panel agreed with EA that video games enjoy First Amendment protections, but found that those free speech rights could be trumped by an individuals' intellectual property rights in some instances. We named Hart's lawyer, Michael Rubin of Altshuler Berzon, Litigator of the Week for the win.
In the second Ninth Circuit EA case decided Wednesday, the court sided unanimously with Electronic Arts. "[Jim] Brown's likeness is artistically relevant to the games and there are no alleged facts to support the claim that EA explicitly misled consumers as to Brown's involvement with the games," Bybee wrote for the panel.
Brown's lawyer, Ronald Katz of Manatt, Phelps & Phillips, declined to comment on his clients plans for further appeals.
An EA spokesman said in a statement that the company was "pleased with the outcome regarding Jim Brown's likeness, but equally disappointed with the ruling against First Amendment protection in the Keller case."
"We believe the reasoning in Judge Thomas' dissent in that decision will ultimately prevail as we seek further court review," EA added.
In related news, the NCAA announced earlier this month that it was not renewing its contract with EA, citing "the current business climate and the costs of litigation."
Ross Todd is a senior reporter with The Litigation Daily, a Recorder affiliate.