Federal judge rejects motions to dismiss, allows videogame suits against NCAA, Electronic Arts to proceed
Update Time! For those of you wondering what ever happened with the efforts of Ed O’Bannon, Sam Keller and Craig Newsome – former college athletic stars all (but you probably knew that already, didn’t you?) – to protect their right to control the use of their images, the answer is: Lots. While none has yet emerged victorious over the NCAA, Electronic Arts (EA) and other various foes, progress has been made recently.
As loyal readers of this blog know, the field of “image rights” has been the subject of extensive litigation over the last couple of years. Former professional athletes (including no less a luminary than Jim Brown) and their college counterparts have sued a range of defendants in an effort to protect their ability to control, and profit from, the use of their images. And while Jim Brown’s attempt was stopped at the line of scrimmage, recent rulings in the cases of O’Bannon, Keller and Newsome may provide a path to victory for them (and other similarly situated celebs).
Keller and Newsome were big-time college football players, while O’Bannon played hoops. Since I happen to be partial to b-ball – as opposed to football (in large measure because of my distaste for the whole BCS ridiculousness) – here’s some background on O’Bannon. Originally recruited to play basketball at UNLV, he ends up at UCLA when UNLV’s program is put on probation. He gets injured bad (ACL) as a frosh, but fights back and, as a senior in 1995, is named college player of the year, stars when the Bruins win it all at the NCAA’s Big Dance, gets his UCLA number retired, the works. As college careers go, it doesn’t get more Story Book. Pro-wise, not so much: he went high (9th) in the NBA draft, but lasted only two seasons, followed by some play in the foreign leagues, and then retirement to a new career as a pretty successful car salesman.
Fast forward a decade or so. As the story goes, O’Bannon notices a friend’s son playing a video game featuring the 1995 UCLA Bruins. The video team includes an unnamed player startlingly similar – actually pretty much identical – to O’Bannon: same position, same number, same stats, same shooting hand, etc. His friend remarks, “You know what’s sad about this whole thing? You’re not getting paid for it.” O’Bannon thinks, “Wow, you’re right.” He lawyers up and sues.
O’Bannon and Newsome went after the NCAA. Keller, in a separate suit which was ultimately joined with the O’Bannon/Newsome action, named the NCAA and EA as defendants. The gist of the suits is that somebody – maybe the NCAA, maybe EA, maybe others – is making a boatload of cash from video games which depict (without specifically identifying) real people who are readily identifiable through various aspects – stats, player numbers, years, etc. Why should those real people not be entitled to share in the profits since their images are central to enterprise?
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