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EA Sports Used Ex-NCAA Athletes' Likeness Without Permission: 9th Cir.

Electronic Arts used the images of several ex-NCAA athletes without their permission in its video games, the 9th Circuit Court of Appeals ruled Wednesday.

EA's use of the likenesses of former college players in its video games did not deserve First Amendment protection, the court held in a 2-1 ruling (attached below). Ex-UCLA basketball star Ed O'Bannon and former Arizona State quarterback Sam Keller were among the group of ex-players who filled suit over the use of their likenesses in the NCAA football and basketball games.

EA "literally recreates Keller in the very setting in which he has achieved renown," and lacked "significant transformative elements" to defeat a right-of-publicity claim, Circuit Judge Jay Bybee wrote for the majority.

Bybee pointed out that in the 2005 edition of NCAA Football, the virtual starting quarterback for Arizona State had the same facial features, hair color, skin tone, throwing arm, weight, height, home state, and visor preference as Keller.

It has been a rough summer for Electronic Arts. Two weeks ago EA lost the rights to put the NCAA logo and name on its games beyond this year. In May the 3rd Circuit Court of Appeals revived a similar lawsuit by former Rutgers University quarterback Ryan Hart. That court said Hart's right of publicity outweighed EA's right of expression.