Keller’s lawsuit threatens Hollywood
Argument has ballooned into a First Amendment challenge
SAN FRANCISCO -- There was a time when Sam Keller and his teammates couldn't wait to get their hands on Electronic Arts Inc.'s latest edition of NCAA Football, which included their team and images down to Keller's distinctive visor he wore while playing quarterback for the University of Nebraska in 2007.
EA shares undisclosed royalties with the NCAA for use of college stadiums, team names and uniforms and the players' images in a game that racks up hundreds of millions of dollars in annual sales. Because they are amateur athletes, the players don't receive any direct benefit from the appearances of their nameless images in the game.
But Keller and an increasing number of players, such as former UCLA basketball star Ed O'Bannon, think they should and have filed at least nine federal lawsuits against the NCAA and EA during the past two years.
On Tuesday, Keller was in Pasadena to watch his team of lawyers urge the 9th U.S. Circuit Court of Appeals to uphold a trial judge's decision that EA and the NCAA appear to owe the former Cornhusker and -- by the extension -- thousands of other former players millions of dollars for using their images in the video game.
"When you are playing, you are kind of naive to the idea that you are being taken advantage of because you are so caught up in playing college football," said Keller of his decision to sue long after his college career ended and he failed to make the Oakland Raiders 2008 regular season roster. "They are making billions off of our images."
A Keller victory could dramatically reshape the commercial relationship between the NCAA and its athletes, which are prohibited from receiving compensation tied to their performances. Keller's attorney and his supporters are floating the idea of setting up a trust fund of sorts with any proceeds from the lawsuits to benefit the athletes. They envision the NCAA continuing to fund the trust fund with the billions in dollars it receives from television networks, apparel sales and other sources.
Keller was a highly sought recruit when he graduated from the Bay Area's San Ramon Valley High School in 2003. He played for three years at Arizona State, garnering MVP honors for his performance as a sophomore in the Sun Bowl. After losing the starting job, he transferred to Nebraska in 2006 and sat out that season because of NCAA transfer rules. Keller started for the Cornhuskers in 2007 as a red-shirt senior before breaking his collar bone against Texas in the ninth game of the season.
Keller's lawsuit has also unexpectedly ballooned into a major First Amendment challenge, prompting Hollywood's largest movie studios and dozens of other interests - from the estates of reggae legend Bob Marley and Nobel laureate John Steinbeck to ESPN and the Comic Book Legal Defense Fund - to weigh in on the case.
The hearing Tuesday in the historic Spanish Colonial Revival courthouse in Pasadena focused on a February 2010 ruling by U.S. District Court Judge Claudia Wilken refusing to grant EA free speech protection and dismiss the lawsuit. EA argues that it uses the players' images to create works of art much in the same way authors, filmmakers and songwriters insert real people in novels, movies and songs.
Wilken ruled against EA, saying the company didn't sufficiently "transform" the players' images to qualify for First Amendment protection. She said EA's argument that it removed the names of the players from the game wasn't enough because it was obvious who the nameless images represented real people.
For example, the virtual player wears the same jersey number, is the same height and weight and hails from the same state, Wilken said.
EA and the NCAA appealed and are joined by the Hollywood studios, media companies and other organizations such as the Comic Book Defense Fund who fear that Wilken's ruling, if allowed to stand, will severely stifle artistic expression.
EA's lawyers, for instance, predict the demise of movies such as "Forest Gump" that rely heavily on the free use of celebrity images to further a narrative.
"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.
Allowing the players' lawsuit to go forward will threaten future movie productions, Motion Picture Association of America wrote in support of EA.
"For example, an unauthorized biography of Keller, which included photographs of him wearing his college football uniform or playing college football, would be strictly prohibited,'' the MPAA's attorneys wrote the appeals court. "So too would a motion picture about a fictional college football player that incorporated historical footage of actual college football games and named actual college football players."
Keller's attorney dismisses the threats of an artistic Armegeddon if EA ends up owing the players for using their images.
"There is a big difference between those examples and a video game based in realism,'' said Steve Berman, one of Keller's attorneys. "They're whole game is realism. Realism is the opposite of creative expression.''
Keller has his share of supporters, too. Players unions of all major professional sports leagues in the United States back Keller as do the estates of Marley and Steinbeck
"EA's infringing use of the athletes' personas is tantamount to stealing, and opens the door for others to freely circumvent the statutory and common law right of publicity of any individual in the future," wrote lawyers for the Steinbeck estate, the Screen Actors Guild and several other organizations representing authors and actors. "The result can be ruinous to a performers' career and financial interests, as well as to their families'."
If Keller prevails, many of the myriad lawyers involved in the case and legal scholars following it closely say the case could end up before the U.S. Supreme Court. Keller said in an interview Thursday from Scottsdale, Ariz. where he lives and manages a hotel bar that he never envisioned his complaint becoming so far reaching.
"The goal wasn't for it to get so big," Keller said. "The goal was to change what's going on in college sports, to change the behavior of the NCAA."