Tuesday, November 16, 2010

....is it a creative act to replicate real life accurately?

The lawsuit by college football star over his likeness in EA game may go to Supreme Court.

Sam Keller’s name did not appear in the NCAA game, there was little doubt that he was the inspiration for the Arizona State quarterback. The virtual player shared Keller’s jersey number, 9, as well as his height, weight, skin tone, hair color and home state. The virtual quarterback even had the same playing style, as a pocket passer.

Keller was seeking compensation for himself and other college athletes whose names were not used but whose images he contended were being illegally used by the company.

But to the media conglomerates, athletes, actors, First Amendment advocates and others who have recently weighed in on the case, Keller’s lawsuit is about much more than video games.
The case is drawing attention because it gets to the heart of a highly contested legal question: when should a person’s right to control his image trump the free-speech rights of others to use it?

In February, a judge, rejected a request to dismiss the case, arguing that Electronic Arts did not sufficiently “transform” the images into a work that would qualify as free speech.

Keller and his supporters have said that sports video games should not be protected because they are simply trying to replicate real life and are not creative in nature.

In its appeal, Electronic Arts argues that Wilken mistakenly considered only Keller’s image and not the entire game, which qualifies as a creative work.

....is it a creative act to replicate real life accurately?

“We have a new medium that didn’t exist 20 or 30 years ago, and I think we’re starting to see these issues sort out,” said Alonzo Wickers, a lawyer for Electronic Arts.

The outcome could rewrite the rules that dictate how much ownership public figures have over their images — and the extent to which outside parties, including media and entertainment companies — can profit from them.

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