Electronic Arts' fight over NFL avatars attracts big media attention

Big media companies, including the Washington Post and Los Angeles Times, have lined up to support video game maker Electronic Arts in seeking a new court hearing regarding EAs use of likenesses of former NFL players.

EA is fighting a2012 lawsuit over its popular Madden NFL game, filed by NFL players including Vince Ferragamo. The playersallegethat the company hasnt paid them or sought their permission to use their likenesses in the game.

According to the media companies, the First Amendment issues at stake in the lawsuit could have broad impact on the entertainment and media industry.

A wide range of speech was put in danger, when EA was found to be unprotected by the First Amendment in the lawsuit, according to a brief written by lawyers for the media companies.

EA is based in Redwood City, California, but the Madden game is made in Maitland, a suburb of Orlando, where the company employs 800 people.

EA tried to argue that the First Amendment protects its rights to use the likeness of well-known people, but a judge and an appeals court ruled against that argument last year.

Electronic Arts now seeks a rehearing on the First Amendment question, saying that the court missed some important issues in its previous rulings. Thats when the big media groups got invovled.

The media groups are asking the court to clarify the law for the benefit of video game makers, film producers, songwriters, and other creators.

If the use is relevant to the underlying expression in the work, the First Amendment should almost always protect the use (except when a use explicitly misleads consumers as to origin or sponsorship), according to the media groups arguments.

The media companies said they are focused on speech other than commercial advertising, so the definition of commercial advertising is also in play for the dispute.

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Electronic Arts' fight over NFL avatars attracts big media attention