With consumers paying premiums for realistic video games, video game developers may be tempted to create characters that markedly resemble celebrities and other real people.  A recently filed federal suit by a class of college athletes, however, may serve as a warning against the use of such identifying characteristics. 

Samuel Michael Keller, a former starting quarterback for the Arizona State University and University of Nebraska football teams, recently filed a class action suit against Electronic Arts, Inc. (EA), the National Collegiate Athletics Association (NCAA) and the Collegiate Licensing Company (CLC) on behalf of himself and other NCAA student athletes.  Keller claims that EA, a leading sports-themed video game developer, the NCAA, the governing body of college sports and the CLC, the licensing arm of the NCAA, conspired to misappropriate his and other collegiate athletes’ rights of publicity when EA used characters resembling them in its video games.

EA produces the NCAA Football, NCAA Basketball and NCAA March Madness video game franchises.  These video games are subject to licensing agreements with the NCAA.  Under the licensing agreements and NCAA bylaws, no NCAA athlete’s name, picture, or likeness may be commercially licensed.  Through the CLC, the NCAA must approve every video game before it is released by EA.

EA’s games replicate full NCAA college basketball and football teams that can be manipulated by the gamer to simulate basketball and football games.  Pursuant to EA’s license with the NCAA, EA’s games replicate team logos, uniforms, mascots, and stadiums.  The games, however, do not refer to the athletes by name.  Keller alleges that EA, as well as the NCAA and the CLC, have violated his publicity rights by using players’ identifying characteristics in the creation of video game characters.  The characters in each EA game resemble the real-life athletes in height, weight, skin tone, position, uniform number, unique equipment preferences and home state.  According to Keller’s complaint, EA also deliberately designs its games so that players can upload rosters of the teams to give the unnamed characters the appropriately matched names.  

Keller argues that defendants’ conduct violates his publicity rights under Indiana and California state laws that prohibit the infringement of the right of publicity.  Keller’s complaint also raises claims of civil conspiracy, violations of the California Unfair Competition Act, breach of contract and unjust enrichment.  He is seeking unspecified actual, statutory and punitive damages; disgorgement of all profits earned by EA, the NCAA and the CLC; pre- and post-judgment interest on any monetary relief; an injunction prohibiting future use of the names and likenesses of Keller and the other class members; seizure and destruction of all infringing games; and attorney’s fees and costs.  EA issued a statement on behalf of all three defendants disputing Keller’s claims and stating that the defendants did not believe the games violated student-athlete rights or the NCAA bylaws.

Ryan Hart, a former quarterback on the Rutgers University football team, filed a similar case on June 30, 2009 in New Jersey Superior Court alleging that EA had invaded his privacy for commercial purposes.

Arent Fox is continuing to monitor this case for further developments.  Video game and other software developers are advised to seek legal counsel during the creative process to discuss any potential legal issues. For further information, please contact:

Anthony V. Lupo
lupo.anthony@arentfox.com
202.857.6353

Matthew R. Mills
mills.matthew@arentfox.com
202.715.8582