(credit: Electronic Arts)

Electronic Arts is making good on its year-old promise that it would fight to protect its stated First Amendment right to produce one of the world’s most popular video games, Madden NFL,  while using the likenesses of pro players without their permission.

The video game maker has now rushed from the virtual gridiron to the US Supreme Court, where EA claims it is being punished for producing a game that looks too real. Electronic Arts is asking the justices to review a federal appellate court decision from last year that found EA cannot claim that the use of the players’ images were “incidental” and covered by the First Amendment.
“We hold EA’s use of the former players’ likenesses is not incidental because it is central to EA’s main commercial purpose—to create a realistic virtual simulation of football games involving current and former NFL teams,” Judge Raymond Fisher wrote (PDF) for the 9th US Circuit Court of Appeals. The same San Francisco-based federal appeals court in 2013 sided with NCAA college football players in their lawsuit against EA, a ruling that resulted in a $40 million settlement.
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