By PAUL ELIAS
SAN FRANCISCO – A federal appeals court on Wednesday tossed out NFL Hall of Famer Jim Brown’s lawsuit against Electronic Arts. Brown alleged that his inclusion in the company’s “Madden NFL” video games suggested he endorsed the product, a claim the 9th U.S. Circuit Court of Appeals said the Redwood City, Calif., rejected.
The suit was tossed the same day the panel ruled Electronic Arts must face legal claims by college players that it unfairly used their images without compensation.
Brown’s attorney Ron Katz said his client filed his lawsuit alleging a violation of the Hall of Famer’s “trademark” rather than Keller’s claim that EA violated his “right to publicity.”
Authors, filmmakers and others are allowed to use famous people’s “trademarks” as long as they are creating new artwork and not seeking to profit specifically from the celebrity.
The 9th Circuit said Brown, unlike Keller, needed to prove that EA explicitly mislead consumers into thinking Brown endorsed the Madden video games because of his inclusion. EA promoted a feature in older Madden games that included 50 of the greatest NFL players.
“EA’s statement is true and not misleading,” Judge Jay Bybee said, noting that the NFL had named Brown one of its 50 greatest players.
“As expressive works, the Madden NFL video games are entitled to the same First Amendment protection as great literature, plays, or books,” the panel concluded. “Brown’s likeness is artistically relevant to the games and there are no alleged facts to support the claim that EA explicitly misled consumers as to Brown’s involvement with the games.”