Next time somebody condemns your favourite video game as crude entertainment, you can now legally argue it is in fact a work of art.
That’s the argument used by a Los Angeles judge who rejected a lawsuit filed by NFL legend Jim Brown (pictured) against Electronic Arts. Brown had argued that EA had breached his intellectual property rights by including his likeness in the Madden series.
While the game didn’t name Brown, it did include a player who physically resembled him in a team of all-time Cleveland Brown greats. As well as the the visual reference, the player (who isn’t named) has historical statistics remarkably similar to those of Jim Brown.
However, the judge dismissed the case, ruling that the use of Brown’s image was an example of “expressive works, akin to an expressive painting that depicts celebrity athletes of past and present in a realistic sporting environment.” Such works are protected in the US by the First Amendment.
The ruling, which could still be appealed, doesn’t appear to have put Brown off his campaign on the issue. He’s applied to add his input to a separate legal case led by Sam Keller, a former football player for Nebraska University who is suing both EA and the NCAA over their inclusion of player images in college-based games. In that case, too, the players are not named but are otherwise identifiable.
EA’s defense in the case is based on the logic that all the details they use, such as a player’s physical appearance, jersey number and career stats, are matters of public record. They say visual likeness restrictions should only apply in areas such as advertising.
The nature of the two cases means that the judge in the Keller case is under no burden to take into account the Brown ruling, even if she allows him to join the Keller case.
Earlier this year, the NFL Player’s Association, which represents retired players, agreed to pay $24 million in compensation over claims that it deliberately worked with EA to allow the firm to avoid paying royalties to players featured in ‘historic’ modes.
