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Human likenesses are not protected speech, US court rules

In a 2-1 ruling, the U.S. 9th Circuit Court of Appeals ruled that EA's unauthorized use of student athletes' likenesses in its sports titles was not protected under the First Amendment.
In what may prove to be a landmark ruling of considerable precedent, the U.S. 9th Circuit Court of Appeals ruled yesterday that unauthorized video game representations of real individuals are not protected by the First Amendment. In particular, the appellate court rejected an appeal by Electronic Arts and the National Collegiate Athletic Association (NCAA) which contended that the uncompensated use of student athlete likenesses in EA's sports titles was protected speech. "EA's use of the likenesses of college athletes like [original plaintiff] Samuel Keller in its video games is not, as a matter of law, protected by the First Amendment," the court stated in its majority opinion, following a 2-1 ruling. "The Court of Appeals confirmed that EA's defense -- the First Amendment claim -- was fundamentally flawed," said Steve Berman, attorney for plaintiff Keller. "We expect that when we appear before the trial court again this fall, the defendants will have a very difficult time mounting a new defense for their blatant exploitation of student athletes." Recently, EA filed a request for a motion of dismissal from the suit, which is expected to go ahead in early September. The NCAA also recently announced it will not renew its present contract with EA, though it is likely EA Sports' college ball titles will continue via licensing through a separate legal entity, the Collegiate Licensing Company (CLC).

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