Publisher Electronic Arts has finally found the key to stopping an offensive assault by former Cleveland Browns running back Jim Brown: you pay him money.
EA has settled a lawsuit with National Football League hall of famer Jim Brown for $600,000, according to Brown’s attorney, Robert Carey. Brown alleged that EA was using his trademark likeness to promote the Madden NFL franchise as a member of throwback all-legends teams. The annual Madden releases from EA are always among the top-selling games in the $13 billion market that comprises new games sold at retailers in the United States.
That makes EA a target, and Brown went after the company hard for violating his trademark.
“I took a stand for all athletes and laid a framework for future plaintiffs with my great legal team,” Brown said in a canned statement. “Hopefully, this is a step forward in getting companies like Electronic Arts to recognize the value that athletes have in selling their products.”
Previously, a federal court in Los Angeles in 2009 and a federal appeals court in 2013 both threw out Brown’s trademark claim. In each of those instances, the judges determined that games were expressive works, and EA was making a new work featuring the player. That would not violate a trademark based on artists’ protected rights of expression. He only would’ve won that case if his lawyers proved that EA was deliberately misleading consumers into thinking that the football pro had officially endorsed the game.
“As expressive works, the Madden NFL video games are entitled to the same First Amendment protection as great literature, plays, or books,” reads the 2013 9th Circuit court of Appeals decision. “Brown’s likeness is artistically relevant to the games and there are no alleged facts to support the claim that EA explicitly misled consumers as to Brown’s involvement with the games.”
GamesBeat has asked EA for a statement, and we’ll update this story with anything it might have to add when it responds.
After the dismissals, Brown shifted his strategy. Instead of claiming a trademark dispute, he argued that EA was violating his “rights to publicity,” which is the legal idea that people can control how their likeness is used in public. The federal government in the U.S. has no law regarding publicity rights but 28 states do. The First Amendment, however, often overrules these laws when cases reach state-level Supreme Courts.
But publicity-right cases have had success against EA. The company stopped making NCAA Football games after college players, like former Nebraska quarterback Sam Keller, filed suit against it for using their likeness without permission. In 2013, EA agreed to pay $40 million to settle a suit against it by a group of former college athletes that appeared in the company’s college basketball and football games. And Brown has now joined those ranks.
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