Retired NFL Player Video Game Case ‘Ripe’ for US Supreme Court Review: Professor at Chicago’s John Marshall Law School

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An appellate case in court this week brought by former NFL players over the use of their likenesses in a video game could make its way to the U.S. Supreme Court.

An appellate case in court this week brought by former NFL players over the use of their likenesses in a video game could make its way to the U.S. Supreme Court.

That’s according to William Ford, a professor who teaches intellectual property law at The John Marshall Law School in Chicago. On Sept. 11, the Ninth Circuit Court of Appeals will hear oral arguments in Davis v. Electronic Arts (Case No. 12-15737), a class action lawsuit filed by three retired NFL players against Electronic Arts (EA), the publisher of the Madden NFL games. Former players Michael Davis, Vince Ferragamo, and Billy Joe Dupree claim EA violated their rights of publicity by using their likenesses and the likenesses of other retired players without their permission.

“It’s time for the Supreme Court to intervene in this area of the law,” Ford said. “Davis would be a good case for doing so.”

According to Ford: “Electronic Arts has little chance of prevailing before the Ninth Circuit on the issue to be argued this week. That’s due to the court’s previous decision in Keller v. Electronic Arts (Case No. 10-15387, 9th Circuit).” EA and the National Collegiate Athletic Association are in the process of settling that 2009 lawsuit, brought by amateur athletes who claimed their images were unlawfully used in the NCCA Football game series. EA lost its appeal to the Ninth Circuit in that case in a 2-1 decision.

“The issue is ripe for Supreme Court review,” Ford said of the NFL case. “There is a lot of confusion in the lower courts about how to reconcile the right of publicity with the First Amendment rights of game makers. And the lawsuits keep coming, including one recently filed by Lindsey Lohan (Case No. 156443, NY Supreme Court) against the publisher of Grand Theft Auto V. Arguably, we already have a circuit split on this issue, given the Eighth Circuit’s favorable decision for a fantasy baseball provider in 2007.”

The Supreme Court takes only a small percentage of cases for review, but the Court has not addressed the right of publicity since 1977, Ford noted.

Ford’s research is cited in EA’s current appeal to the Ninth Circuit. EA’s appeal notes Ford’s article, “Games Are Not Coffee Mugs: Games and the Right of Publicity,” as an authority in helping to explain the appropriate way to reconcile the right-of-publicity with the First Amendment.

Ford received his law degree, Order of the Coif, from the University of Chicago in 2003. He worked for the Los Angeles firm of Irell & Manella, and later returned to the University of Chicago Law School as a Bigelow Teaching Fellow and Lecturer in Law. In 2007, Ford joined the full-time faculty at John Marshall, where he teaches Video Game Law, Contracts I, Intellectual Property Survey, and Right of Publicity and Protection of Personality.

To speak with Professor William Ford, please contact Christine Kraly at 312-427-2737 ext. 171, or ckraly@jmls.edu

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Christine Kraly
The John Marshall Law School
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The John Marshall Law School
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