Another Football (Game) IP Question - Split in the 9th

Football (and sport in general) continues to be a fruitful source of intellectual property questions and now we have an interesting split developing.

Previously we've seen courts rule whether a painter can use a football team's trademarked red color and back in 2004 a question about the use of a Disney cartoon character as a university mascot. Just last month a suit over derivative works in sports gaming was decided.

Today brings another court case decision related to that same series of football games: Electronic Arts' "Madden NFL" series. In this case, the legendary football player Jim Brown sued EA over the use of Brown's likeness within the Madden NFL games. Brown sued under what's known as the "Lanham Act", a section of 15 U.S.C. that governs trademarks and likenesses. Essentially, Brown needed to show that EA's use of his likeness within its games.

Unfortunately for him, a panel of the 9th Circuit has just affirmed a district court decision asserting that EA has not violated the Lanham Act. Fortunately for everyone else, the Court used a test called "the Rogers test" that tries to balance the First Amendment rights to free expression with individuals' rights. As part of this, the Court recognized games as a protected form of artistic expression and found that those expressive rights trumped Brown's individual likeness rights.

What makes this particularly fascinating is that this panel of the 9th found the exact opposite result when it heard Sam Keller's suit against EA over another of its sports games, NCAA Football. As Daniel Nazer reported on EFF Deeplinks just two days ago, a 9th panel found in favor of the individual!

Nazer notes that the opposite results come from the different bases under which the suits were brought and thus the different balancing tests the panel applied. Even so, it seems logical to consolidate the two cases and request an en banc rehearing. We need a clear set of guidelines on the use of realistic likenesses across all forms of expression - it makes no sense to treat games differently from movies in this respect.