A federal appeals court struck a blow against free speech in a May 21 ruling against a video-game creator and EFF won’t let it stand unchallenged.

Working with a coalition of groups representing filmmakers, vidders, and fair-use advocates, EFF today filed a friend-of-the-court (in Latin, amicus curiae) brief with the Third Circuit Court of Appeals, urging the court to revisit its ruling in Ryan Hart v. Electronic Arts. If the court agrees, the full court (as opposed to just three judges) will have a chance to consider the case.

At the center of the case is EA’s video game NCAA Football, which simulates college football by using realistic digital avatars of players.  One of those avatars resembled Hart, a former Rutgers quarterback. Although he wasn’t named in the game, Hart sued EA, claiming it violated his right to publicity. The court agreed, but what’s really chilling is that it not only came to that conclusion based on a legal test that gives too much weight to commercial interests as opposed to free speech, it applied the test incorrectly. The result: a perilous precedent for all forms of media that depict real people—including unauthorized biopics (for example Oscar-winning The Social Network), documentaries, and even journalism that includes representations of real people.

In a recent blog post EFF’s Intellectual Property Director Corynne McSherry enumerated all the follies of the court’s decision. On Saturday, the New York Times also published an astute, must-read analysis of the issues at play in the case.

Hart won the best of three (judges) match, but EFF thinks free speech will win out in a best of 14. While we would welcome a favorable ruling from the full court (also called en banc), this play is also the next step in bringing the issue to the biggest stadium of all—the Supreme Court of the United States.



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