Two retired NFL players on Monday asked a judge to let them formally support a former college quarterback's legal fight with video game maker Electronic Arts Inc.
Hall of Famers Herb Adderley and Jim Brown asked U.S. District Court Judge Claudia Wilken to let them file the legal document in support of former Nebraska Cornhusker Sam Keller, who sued EA and the NCAA in Oakland federal court last year.
Keller, who also played for Arizona State University before transferring, accused the Redwood City, Calif., company and the NCAA of unfairly using images of college basketball and football players in its NCAA Football and NCAA Basketball games.
EA and the NCAA argue they have a free speech right to use the images, which don't include the players' names but often reflects the players' race, jersey number and athletic ability. EA and the NCAA argue that they are allowed to use the images without players' permission because the video game action is based on freely available data such as their "likenesses, performance statistics and biographical information."
They argue that that publicity rights claims such as Keller's are limited to advertisements rather than to video games.
A federal judge in Los Angeles on Wednesday tossed out Brown's similar lawsuit against EA for using his image in the company's "vintage" games in "Madden NFL."
U.S District Court Judge Florence Marie-Cooper ruled that video games are much like realistic paintings of athletes depicted in real-life situations, which are protected by the First Amendment as artistic expressions.
"The Madden NFL video games are expressive works, akin to an expressive painting that depicts celebrity athletes of past and present in a realistic sporting environment," Cooper wrote.
Ron Katz, a lawyer who represents Adderley and Brown, said that Cooper's ruling has no effect on how Judge Wilken in Oakland will handle Keller's lawsuit.
Katz wrote in his filing Monday that allowing EA to profit from the college athletes' images without their permission "would mean that EA could use for free the identity of thousands of present and former collegiate and professional athletes, eliminating any legal reasons for EA to continue any licensing, and giving it a windfall worth hundreds of millions of dollars."
Wilken will consider arguments by EA and the NCAA to toss out Keller's case on Nov. 17. She will also consider whether to allow Adderley and Brown to file their friend of the court brief then.
Adderley recently settled a lawsuit on behalf of hundreds of NFL retirees for $26.25 million that involved EA. A jury agreed last year that the NFL Players Association allowed EA to use the retirees' images without compensation. EA was not a party to that lawsuit.