EA(Uh Oh): It’s In the Game

Written By Ari Rada

Reviewed By Cynthia Amis

 

Electronic Arts (EA) is widely considered the leading global entertainment software company, developing software for personal computers, wireless consoles and video gaming systems.  Among Electronic Arts’ most popular software include:  realistic sports games such as Madden (football), FIFA (soccer), NHL (hockey), NBA Jam (basketball) and NCAA (collegiate sports).  Chances are if you’re a male between the ages of 6 and 30 then you are probably a “self-proclaimed expert” with one of the previously aforementioned EA games  (and you probably belong to a video game anonymous group to quit your addiction as well).   Electronic Arts is one of many video game developers which are part of a now multi-billion dollar industry in the United States alone.  When you are sitting at home on a rainy Sunday afternoon and decide to pick up that Xbox controller determined to finally beat Reggie Bush (or is it #25?) and the USC Trojans on expert level, it is doubtful that you are thinking about a potential multi-million dollar lawsuit that is currently being litigated, potentially changing the entertainment gaming industry forever.

On February 14, 2011, former Nebraska quarterback Sam Keller and his lawyers urged the 9th U.S Circuit Court of Appeals to uphold the decision at the trial level that Electronic Arts and the NCAA owe Mr. Keller, as well as thousands of other collegiate athletes, millions of dollars for using their images in their 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, they are making billions off of our images,” said Keller.  In the EA NCAA game, the players wear the same number jersey as they do in real life, are the same height and weight, have the same skills and, thanks to increased technology, even look the same.  Keller and his team of lawyers are planning on using the winning proceeds to set up a trust fund to benefit the athletes.

The lawsuit has also blossomed into a First Amendment freedom of speech challenge as well.  In February of 2010, Electronic Arts argued that it uses the athletes’ images to create works of art similar to that of filmmakers, authors, artists and songwriters. The U.S. District Court Judge Claudia Wilken refused to grant Electronic Arts freedom of speech protection and dismissed the lawsuit, claiming that Electronic Arts did not significantly transform the athletes’ images enough to obtain First Amendment freedom of speech protection.  Electronic Arts, as well as the NCAA, are in the process of appealing the decision, claiming that if this decision were to stand it would inhibit artistic expression and have harsh implications for the rest of the entertainment industry such as Hollywood studios, media companies and other organizations.  Electronic Arts cites that if this decision is upheld, then it fears the demise of movies such as “Forrest Gump,” which rely heavily on the use of celebrity images to enhance their movies’ storylines. “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,” claimed Electronic Arts lawyers in their appeal.  Keller’s lawyers dismiss the notion that this ruling will lead to the beginning of the end of artistic expression.  “There is a big difference between those examples and a video game based in realism. “Realism is the opposite of creative expression,” said Steve Berman, one of Keller’s attorneys.

Based on these set of facts, it is clear that Electronic Arts took collegiate athletes and used their images and likenesses within their games (everything is identical except the mentioning of any players names).  It is also clear that Electronic Arts makes collegiate video games such as NCAA in order to turn a profit.   The collegiate athletes being used in the games are not being compensated for their image/likeness within the videogames.  Although college athletes do not get paid to play sports as do professionals, they do receive scholarships which can be seen as an act of payment.  Nonetheless, that payment is between the university and the player and not between the player and Electronic Arts.  Electronic Arts First Amendment freedom of speech argument fails to work and is unpersuasive, because there is little to no artistic creativity involved in using collegiate athletes’ images and likenesses within their games.  As Keller’s attorneys pointed out, Electronic Arts sports games are made to be as realistic as possible.  That is why Reggie Bush, who wears #25 in real life and wears #25 in the game, has an overall speed of 98/100 in the game.  It is because in real life Reggie Bush is faster than approximately 98 percent of the other players on the field, not because the creators thought, through some stroke of creative genius, to create a fictional character that is lightning fast.  There is no artistic influence and there never was.   Even the head coaches in the game look exactly the same.  Just because Electronic Arts does not put the name” Bush” on the back of the jersey does not fool anyone.  When I played NCAA 2005 on my Xbox last week, my friend was not screaming at me because he could not stop #25 (4 Touchdowns and 325 yards rushing off 18 carries), rather, he was screaming at me because he could not stop Reggie Bush.    The game that Electronic Arts created is built off “realism,” and therefore a First Amendment freedom of speech challenge will never work.  “Forrest Gump” used celebrity images to further a fictional plotline, not to copy or imitate the actual past.

If Keller prevails, which he most likely will, it is very possible that this case can go all the way up to the United States Supreme Court.  Keller’s lawsuit has the power to not only alter the future of collegiate athletes, and Electronic Arts, but change the entire NCAA landscape as well.  It is known throughout the collegiate sports world that college athletes do not get paid for their services from their respective universities, whereas these same universities and the NCAA make millions of dollars in ticket sales, merchandising, advertising, and licensing.  Although most of these collegiate athletes do get athletic scholarships from their universities, the amount of revenue they bring to these universities, the NCAA and Electronic Arts is exponentially more—much more.   If Electronic Arts loses, it will be another step closer for collegiate players to start getting adequate compensation (more than just an offering of an academic scholarship) for their services to their universities and the NCAA as a whole.

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