The lawsuit brought by former Nebraska and Arizona State quarterback, Sam Keller against video game giant Electronic Arts (EA) and the NCAA has been settled. The reported settlement amount is $20 Million.
A statement by the CLO of the NCAA expressed that the timing of the settlement is based on the fact that the video games are no longer in production, as well as Collegiate Licensing Company (CLC) and EA having settled out of the case as well.
The administrator of this site, http://www.RightofPublicity.com joined SAG and other notable rights holders (via Luminary Group) in filing an amicus brief in support of Keller.
It is not entirely clear yet how the settlement funds will be distributed amongst certain affected college athletes, but more information can be found on this link:
Earlier this week, the NCAA’s petition to the U.S. Supreme Court concerning the case of Keller v. Electronic Arts Inc., 724 F.3d 1268 (9th Cir. 2013) was denied. The author of http://www.RightofPublicity.com joined SAG in filing an amicus brief in that case at the lower court level, and the Ninth Circuit’s ruling and analysis were correct under the circumstances.
Electronic Arts, for its part, had already settled the case. The NCAA petitioned the Supreme Court to adopt the Rogers Test to determine use of the Right of Publicity of student athletes in video games and to overturn the determination that the use of the athletes in the video game was not protected by the First Amendment.
The Rogers Test was devised as an analysis for titles and would have been entirely wrong for the Keller case. It is surprising the Rogers test was even suggested, except perhaps it was believed that if adopted the result would be something the NCAA preferred.
The Ninth Circuit’s application of the Transformative Use test was the correct test for the use and issues in question. We don’t need the U.S. Supreme Court to assist in determining that a test devised for titles should not be used in a case like Keller.
An effort to enact meaningful Right of Publicity recognition in New York is gaining momentum. It is long overdue. Details to follow when available and appropriate for release.
It should be noted that for the better part of the Twentieth Century, New York’s judiciary interpreted New York Civil Law sections 50 and 51 as inclusive of postmortem publicity rights. This means, for example, that at the time of Marilyn Monroe’s death in 1962 New York did indeed recognize such rights (and those rights were capable of passing, and thus did pass, into her estate). There is, therefore, precedent for New York recognizing these rights. It need not be seen as treading into uncharted territory.