A former National Collegiate Athletic Association (NCAA) who played for Arizona State and later for the University of Nebraska has filed a suit against California-based video games major Electronic Arts (EI) Inc. and the NCAA, demanding fair pay for the use of his images on EA's popular NCAA Football games editions.
Sam Keller, former Cornhusker, awaits the verdict of the 9th U.S. Circuit Court of Appeals on a trial judge's decision that EA and the NCAA owe him - and by extension, thousands of other former players - millions of dollars for using their images in the game.
The Associated Press reports that EA supposedly has a royalty sharing agreement with the NCAA for using photos of college stadiums, team names and uniforms and the players' images. However, no part of the undisclosed royalty amount - which may reasonably be supposed to be huge given that the game garners hundreds of millions of dollars in annual sales for EA - is received by the amateur players.
Now Keller, and several other athletes including UCLA basketball star Ed O'Bannon feel that the games manufacturer and NCAA have been taking advantage of the players. They have filed nine lawsuits against the two authorities in the last two years.
Earlier, a district court had rejected EA's plea for free speech protection on the grounds that these images are used to create works of art just as real people are often featured in novels, movies and songs. The judge felt that EA had not amended the images enough to secure First Amendment protection.
The case has now led several Hollywood studios, media companies and organizations such as the Comic Book Defense Fund to come forward in defense of EA Inc.
If the court happens to rule in favor of Keller, it might have several other skeletons tumbling out of the closet, or at least have major implications for future artistic creation, as all of these media often rely on real-life figures or celebrities to drive their creative expressions or productions. For example, no motion picture would be able to use historical footage of games or other events even if the story was entirely fictional and the real depiction was just an incidental reference. Defending lawyers have already used Forrest Gump as an example, as the movie extensively and freely used celebrity images to further the narrative.
However, Keller's lawyers have dismissed these examples; Steve Berman, one of Keller's attorneys, told AP that There is a big difference between those examples and a video game based in realism...Their whole game is realism. Realism is the opposite of creative expression.