Software Fair Use

Last week, the 9th Circuit ruled that video game developer EA’s use of the likeness of former college athletes in its NCAA Football and NCAA Basketball video games was not protected under the First Amendment or under Copyright Law’s Fair Use Doctrine. The court also rejected EA’s claim that the use was protected under State law news reporting statutes. “Put simply, EA’s interactive game is not a publication of facts about college football; it is a game, not a reference source….”

However, the Court upheld a dismissal of a lawsuit brought by former NFL Hall of Famer James “Jim” Brown over the use of his likeness in the Madden NFL game. This time the Court said EA’s games were not subject to Lanham Act (Trademark) violations because “Brown’s likeness is artistically relevant to the games and … EA [was not alleged to have] misled consumers as to Brown’s involvement with the games.” The Court indicated that the games “[a]s expressive works, … are entitled to the same First Amendment protection as great literature, plays, or books…” Therefore, in connection with the use of Jim Brown’s likeness, the video game developer was free to use the image in a factual manner which did not mislead consumers.

Where this leaves us with regard to the NCAA is still an open question, but college sports are one step closer to compensating amateur athletes. Tell us your thoughts, do you believe college athletes should be paid for use of their likeness…