Freedom of Speech and Use of Likenesses

Submitted by Dan Chapman

In a test of exactly how far the U.S. First Amendment goes toward protecting freedom of speech, Jim Brown, a retired NFL football player, has launched an appeal of a U.S. District Court decision denying his claim that video game maker EA has used his likeness as a "false endorsement" of its game.

EA won the right to use its likeness in its game because Justice Florence-Marie Cooper held that video games are expressive works, akin to expressive painting, and that the mere depiction of players of today and yesteryear is not sufficient to constitute a false endorsement of the game. The fact that the in-game player looks like and has attributes similar to those of a real individual is not sufficient to override EA's First Amendment rights to freedom of speech.

Brown has launched his appeal of the 2008 decision in the 9th U.S. Circuit Court of Appeals on the basis that he was given insufficient time to demonstrate the facts upon which his action was based.