Keller vs. EA Sports Some former NCAA athletes had a problem with the electronic arts company using their likeness in their football video game and filed a suit against them in the ninth circuit. The case is one of great interest to the author and he has analyzed the right-of-publicity tort in the context of the college football video game. The author, Guylyn R. Cummins, is a partner of the firm involved and writes this article as a piece for a litigation magazine issue. Cummins’ thesis in the article is as follows, “Both cases construe the right-of-publicity (misappropriation) tort in the context of college football video games in a way that has ramifications that may dangerously impact protections afforded by the First Amendment for other realistic, but unauthorized, expressive works. The dissenters argue that these holdings put at risk the ability for creators to produce other realistic, but unauthorized, expressive works based on historical events and people. As discussed below, that argument appears to be true.” (Cummins. 2014) The thesis is preparing you for the examination of the two cases and the arguments for the plaintiff and defendant. …show more content…
Cummins brought several examples of other similar cases in which the rulings were split and the court had to decide which of the rulings was the most similar. “In determining whether a work is transformative, courts look to five factors:
* whether the use of the celebrity's likeness is a "raw material" used in a larger expressive work or, instead, "is the very sum and substance of the work";
* whether the work constitutes "primarily the defendant's own expression," i.e., whether the purpose or motivation for purchasing the work is to buy the defendant's expressive content or simply a reproduction of the