Archive for the ‘Federal Courts’ Category

Politics, bias, and the law

Thursday, January 5th, 2012

There’s something a little weird about members of Congress accusing Supreme Court justices of being overly political.  Republican lawmakers and their supporters have demanded that Justice Elena Kagan recuse herself from any case involving “Obamacare” or the “Affordable Health Care Act.” (Really, what you call it depends on whether you’re for or against it.)  Similarly, Democratic members of Congress and their supporters have called for Justice Clarence Thomas to recuse himself, in light of his wife’s campaigning against the new law.  As tempting as it is to try to weed out any and all possibilities of bias from a judicial panel before allowing it to hear a case, it’s a futile task and a pointless one, too.  No one goes through life without forming opinions on a whole lot of subjects, whether or not they’re qualified to opine on those subjects.  The combined efforts of plaintiffs’ and defendants’ trial lawyers try to choose jury panels that are roughly balanced, but it’s a given that predilections still exist.  When those predilections serve our opponents’ purposes, we call them “biases.”  When they serve ours, we call them “life experience.”

So it was good to see Chief Justice John Roberts stand up for the integrity of the Court in his year-end report on the Court’s activities.  Roberts didn’t mention the healthcare debate—or any particular case, for that matter—but he dismissed the notion that Supreme Court justices are subject to laxer rules than other judges.  “I have complete confidence in the capability of my colleagues to determine when recusal is warranted,” wrote Roberts. “They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process. I know that they each give careful consideration to any recusal questions that arise in the course of their judicial duties.”

The truth is, Roberts may be flat wrong.  But it doesn’t matter.  The good of our judicial system (and our governmental system, as a whole) dictates that we maintain a few fictions, and Supreme Court impartiality is one of them.  The Constitutional scheme of life tenure for federal judges creates the best chance it can of an impartial judiciary.  On the federal level, we’ve done our best.  In Texas, where we have a long history of allegations of “justice for sale”—on both sides of the party aisle, whether the characterization is correct or not—we’re still working on it.  Roberts’s report recognizes that an ethical judiciary requires appointing ethical people.  All else is faith.

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Physician, heal thyself

Monday, June 20th, 2011

“Nothing is more simple than greatness; indeed, to be simple is to be great.” – Emerson, Literary Ethics.

This is, admittedly, a bit late to the party, but a series of video-recorded interviews with the Justices of the U. S. Supreme Court has made its way around the interwebs recently, publicized in large part by the good folks over at NPR.  The message for legal writers is a simple one:  “Skip the Legalese, and keep it short.” It’s good advice for anyone who writes in any arena, but it applies especially to appellate lawyers.  Still, I have to confess that my first thought on reading the NPR article was:  “Do these people ever read their own writing?”

Don’t get me wrong.  The Supreme Court deals with the weightiest of weighty issues—Constitutional rights, including the rights of the accused; death penalty cases; federal statutory and regulatory schemes; and the sometimes highly complex interplay of federal and state law, all set against the background of the most politically charged city in the entire nation.  In short, it just can’t be an easy job, and difficult subject matter requires a certain gravitas.  But it’s also no secret that Supreme Court opinions are longer now than they ever have been before.  As the New York Times noted last November, the landmark decision of Brown v. Board of Education desegregated public schools in fewer than 4,000 words in 1954.  In contrast, Parents Involved in Community Schools v. Seattle School District, tipped the scales at 47,000 words, despite addressing only an aspect of the ground so economically covered by Brown. The same Times article also observed that the length of majority opinions from the high nine hit an all new high in the 2009-2010 term.

At least part of this might be explained by the fact that there is simply so much more law out there since the Warren Court decided Brown. But opinions aren’t just longer.  They’re also less readable and, according to some sources, provide scant guidance to lower courts, attorneys, and the public at large.  So it’s not merely a question of efficiency but a question of usefulness, as well.  If a court’s written opinion has one function, above all, it is to say what the law is so that others can be guided by it.  That goes double when it comes to the opinion of the highest court in the land.

So, Physician, heal thyself.  Advocates should avoid wasting courts’ limited time with overly long, formalistic briefs loaded with legalese, but judges should reward that effort with concise holdings that eschew complexity and favor clarity.  Small words can say as much as big ones.  Earl Warren needed fewer than 4,000 such words to change America forever.  And effectiveness is measured by weight, not by volume.

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The new face of frivolous lawsuits?

Friday, May 27th, 2011

The view of judicial-system abuse usually pushed by politicians and lobbyists, including some of the shills in our own Texas legislature, is of the barely-hurt-but-greedy auto accident or medical liability plaintiff who expects to back his truck up to the side of his lawyer’s office and start shoveling his money into the bed.  It’s the welfare mother who wants to live large on the windfall from a lawsuit, rather than get a job or the grandmother who gets millions for spilled coffee.  Tort reformers have made these kinds of stories—whether true or hyperbolic—their bread and butter for years now, and they have led to substantial legal “reforms,” some needed, some not.

But in the internet age, the frivolous litigant has a new face.  Righthaven LLC is a Nevada limited liability company that exists for what appears to be the sole purpose of bringing lawsuits for copyright infringement.  Righthaven is what the Electronic Frontier Foundation calls a “copyright troll.”  Righthaven searches the media for instances of possible copyright infringement—usually unauthorized use of newspaper articles or photographs—and then contracts with the original publisher for an interest in that same article or photograph.  It then turns around and files a copyright infringement suit against the alleged unauthorized user and splits the proceeds with the original publisher.  Being a professional litigant seems to be Righthaven’s only line of business.  (Its sole web presence is www.righthavenlawsuits.com.)  Presumably, this allows publishers to chase lawsuits and try to scratch up a little extra cash on the side without actually getting their hands dirty in the often messy world of litigation.

But Righthaven had a recent setback in a Nevada federal district courtroom.  There, in the case of Righthaven v. Center for Intercultural Organizing, Hon. James Mahan granted summary judgment to the defendant on the grounds that its use of an article from the Las Vegas Review-Journal—a piece of which was sold to Righthaven by Stephens Media LLC, the publisher—constituted “fair use” within the meaning of the federal copyright law.  The gist of the holding was that an assignee that holds a share of copyright purely for litigation purposes has a case that is much more susceptible to defeat by a fair use defense.  Unlike Stephens Media, Righthaven isn’t in the business of disseminating information, selling newspapers, or even licensing news articles and photographs to others.  (The license it purchased from Stephens Media didn’t allow it to do any of these things.)  It’s in the business of filing lawsuits against websites, bloggers, and anyone else against whom it can arguably assert claims.  So a use of the article for its original intended purpose—disseminating information—becomes a transformative use within the meaning of the law and a transformative use falls within the fair use doctrine.

Of course, the claims Righthaven pursues are presumably claims that the original copyright holder feels aren’t worth pursuing if it would actually mean expending any of its own time or resources.  Litigation costs time and money.  It results in an invasion of privacy and a public parading of facts that many would rather have remain private.  The perception that plaintiffs hire a lawyer and then just sit back and wait for the money to roll in seems to be part of what has spurred the tort reform movement.  And if an individual like the hackneyed greedy personal-injury plaintiff or a corporation like Stephens Media can avoid the awkward and time-consuming aspects, the uncertainties and worries, of a lawsuit, by simply contracting them away, it’s bad news for our legal system.  Litigation shouldn’t be painless, but making it painless for its corporate partners is precisely what Righthaven appears to set out to do, while lining its own pocket in the process.  One would hope that it’s not only our federal judiciary that is taking notice of this new breed of litigant.

Tip o’ the hat to Courthouse News Service.

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Plaintiffs whiff; EA walks

Thursday, May 5th, 2011

An update on Keller v. Electronic Arts, Inc., the case of a former college football quarterback who sued the video game maker for appropriating his likeness in its “EA Sports NCAA Football 2007” game.  I reported earlier on the trial judge’s rejecting several affirmative defenses posed by Electronic Arts here.  On Monday, however, (in a related case now consolidated with Keller’s) she rejected the plaintiffs’ claims against EA on the grounds that all it really did was follow the terms of the license granted to it by the NCAA and the Collegiate Licensing Company—in its own words, “the nation’s leading collegiate trademark licensing and marketing company.” (In a wholly surprising turn of events, a spokesman for EA declared the company “pleased” with the judge’s ruling.)

But at the same time as she granted EA’s Motion to Dismiss, she denied similar motions by both the NCAA and CLC.  Since the focus of the litigation will now be, not on EA’s actual use of college athletes’ public images and likenesses, but on the grant of rights made by the NCAA and, presumably, assisted by the CLC, the plaintiffs may find themselves on firmer ground.  It’s entirely possible that the license granted by the NCAA is substantially broader than the actual use to which that license was put by EA.  Indeed, the plaintiff athletes argue that the license deprived them of their rights in perpetuity, not just for purposes of one year’s video game and possibly not just for purposes of video games, at all.

So, in short, the NCAA may well have some ‘splainin’ to do before all this is over.

Tip o’ the hat to Kotaku.com.

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A life lesson from the bench

Wednesday, May 4th, 2011

This Order on a Motion to Continue has made the round of the legal blogs over the last few weeks, and there really isn’t too much more to say about it.  Nevertheless, recent events in my own practice brought it to mind.

As law students, future lawyers are taught that the duty of zealous advocacy is one of the central—if not the central—duties we owe our clients.  You put the client’s interests above your own.  You put the client’s interests ahead of virtually any other interest, save the integrity of the justice system, itself.  And you sure as hell put your client’s interests ahead of those damned vermin (read, opposing counsel) on the other side of the table, right?  Wrong.  (Well, sometimes.)

U. S. District Judge Eric Melgren of the District of Kansas sounded just the right note in this order, which is why I think it has been referenced so many times.  The plaintiffs in the case—Jayhawk Capital Management—opposed a motion for a trial continuance filed by the defendants.  The reason for seeking the continuance?  One of the defendant’s lawyers wanted to be at his wife’s side for the birth of their first child.

Now, a trial setting is a valuable commodity for a plaintiff, and it’s not something to be given up lightly.  Many times, a recalcitrant defendant will suddenly see reason and come to the settlement table when the alternative is to face a jury in short order.  This may be especially so in personal injury cases, where feelings are often raw and individuals have waited months or years for their day in court.  But this appears to be a commercial dispute between two business entities.  And as Judge Melgren pointed out in his order, judges and lawyers should avoid confusing what they do with who they are, or distorting the priorities of their day jobs with their life roles.  That means putting human concerns ahead of legal ones and basic compassion ahead of gamesmanship.  Or as one blog put it:  just play nice.

It’s a good lesson, and though it’s received plenty of publicity, it still bears repeating.

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Reporters and the Twittersphere

Thursday, April 21st, 2011

Ever since the Tim Donaghy affair, NBA referees have had something of a chip on their collective shoulder.  The nature of officiating in basketball is inherently subjective and inherently difficult due to the speed at which the game is played and the often subtle difference between a game-changing play and a momentum-killing foul.  But Donaghy crossed the line from “subjective” to just plain “crooked.”  Following an investigation by the FBI into whether he bet on games he officiated and made calls specifically intended to influence the point spread, Donaghy pled guilty to two federal counts against him and was sentenced to 18 months in prison.

With Donaghy’s confession (and his subsequent efforts to turn a buck off the scandal) still fresh in the minds of the NBA and the public, the whole sordid mess appears to be a tender spot for referees, and for one in particular—Bill Spooner, who last month filed suit in Minnesota federal court claiming defamation against AP reporter Jon Krawczynski.  On January 24, 2011, Spooner set out to officiate a game between the Minnesota Timberwolves and the Houston Rockets, as reported by Spooner’s complaint.  During the first half, Spooner called a foul on a Minnesota player and was questioned about it by Timberwolves’ coach Kurt Rambis.  Spooner replied that he would review video of the play at halftime and discuss it with Rambis later.  Rambis walked away from the conversation while remarking, “Fine, but how do I get those points back?”

Krawczynski—a witness to the exchange—later posted on his Twitter account:  “Ref Bill Spooner told Rambis he’d ‘get it back’ after a bad call.  Then he made an even worse call on the Rockets.  That’s NBA officiating folks.”  According to Spooner’s lawsuit, the post implies that Spooner planned to make a false call in order to balance the scales.  Spooner calls the tweet defamatory and alleges that it brought the wrath of the NBA down upon him in the form of a disciplinary investigation and caused harm to his reputation.

With Twitter now a ubiquitous part of the sports and journalistic landscape, Spooner’s lawsuit has potentially broad implications.  As one blogger observed, credible sources and verification are required to publish an item in a newspaper, but there’s no edit function on Twitter.  As a real-time medium, Twitter publishes statements from the speaker’s mouth to God’s—and everyone else’s—ear.  So far, Spooner’s suit hasn’t noticeably chilled the Twittersphere, and it may do no more than cause a reporter or blogger to double-check a source before posting—which isn’t necessarily a bad thing.  But any time that a journalist’s free speech—even concerning something as inconsequential as a basketball game—gets attacked, it’s cause for some serious thought.  As another blogger observes, is a tweet an extension of a reporter’s written or recorded report, or is it simply a record of random observations?  Is there a difference?  What about non-journalists with Twitter accounts (and there are many of us)?  Are we all held to the standard of journalists?  While credible sources and verification are required for newspaper publication, that seems like more a matter of journalistic ethics than anything else.  Verification makes for good legal protection, but is ironclad legality the standard we want for public discourse (albeit giving due deference that statements made should probably be intended to be factual)?

Tip o’ the hat to Courthouse News Service and OnPoint News.

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The circus is in town…

Monday, March 21st, 2011

As a rule, I avoid commenting on any sort of criminal law matter.  I don’t practice criminal law at either the trial or appellate level, and I’m not deeply familiar with the big issues in criminal cases, two semesters of criminal law and criminal procedure notwithstanding.  The truth is that the criminal sphere and the civil are usually two separate worlds, and only a handful of lawyers move comfortably between them.  Those who devote themselves to criminal practice—particularly on the defense side—often have my sincere admiration for their dedication to their profession and craft and, more significantly, their core principles that mirror the ones truly fundamental to our justice system.

But high-minded thoughts aside, some days a criminal case strikes my interest because of the subject matter.  Today is one of those days because today is the day that Barry Bonds went on trial.

Bonds, of course, is the godson of Willie Mays and the current Major League Baseball homerun king, holding both the career (762) and single-season (73) records.  He stands accused of perjury—lying under oath to a federal grand jury about his alleged knowing use of steroids.  As much as I’ve never been a Bonds fan, it’s hard to know who is wearing the white hat in this one.

One of the prosecution’s major witnesses will be Jeff Novitzky, a former special agent for the Internal Revenue Service, who now works as an agent for the Food and Drug Administration investigating the use of steroids in professional sports.  It was Novitzky who brought to light the various sins of the Bay Area Laboratory Co-operative and who played a part in the downfalls of Marion Jones and Floyd Landis.  Novitzky seems to have been a major source of information for the Mitchell report concerning the use of performance-enhancing drugs in Major League Baseball.

The question here—as a fan of both baseball and our Constitution—is who do you root for in this contest?  Bonds is arrogant.  He’s a scion of, if not baseball royalty, at least a solid journeyman and multi-time All Star with a record that didn’t quite make the Hall of Fame.  As a player, he surpassed his father’s accomplishments by far.  His exploits captured baseball fans’ imaginations, even as his public persona repelled many.  But arrogance doesn’t get you jail time.  Pride may be a sin, but it’s not an offense.  Unfortunately for Bonds, lying to a grand jury is, and that’s what he’s accused of doing.

On the other side, there’s Novitzky.  Crusading for justice is one thing, but being a crusader is quite another.  In the bestselling Game of Shadows, journalists Mark Fainaru-Wada and Lance Williams detailed Novitzky’s digging through dumpsters and sifting garbage to find evidence of steroid distribution by Victor Conte, the driving force behind BALCO.  In the course of that investigation he discovered evidence of steroid use by Bonds and others.  One wonders what might have happened if HIPAA applied to dumpsters….

So those of us who care about both our national conscience and our national pastime are left with a bit of a dilemma.  Bonds is no hero, but does Novitzky get a pass for invading privacy rights, just because it turns out he was probably right?  Does a willingness to dig through garbage make you a role model more than an artificially souped-up ability to hit homeruns?  Is the pursuit of justice, without observing the spirit of the law, any nobler than the pursuit of the homerun record, without observing the spirit of the game?  Twelve umpires will decide.

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It’s not illegal, except when it is….

Tuesday, March 15th, 2011

Bankruptcy, the gift that keeps on giving.  In a recent appeal from a federal bankruptcy court, the Fifth Circuit held that a past bankruptcy filing is a permissible consideration for an employer when deciding whether or not to extend an offer of employment.  On a human level, this is troubling, but from a legal standpoint, it is hard to see where the Court went wrong on this one.

Shani Burnett interviewed for a position with Stewart Title Company in July, 2007.  Some nine or ten months previous, Burnett had filed a voluntary petition for bankruptcy under Chapter 13 of the U. S. Bankruptcy Code.  Stewart offered a job to Burnett, contingent upon the results of a drug screening and background check.  In the course of the latter, Stewart discovered Burnett’s bankruptcy filing and rescinded its offer.  Burnett sued under 11 U.S.C. § 525(b) on the grounds that Stewart illegally discriminated against her for exercising her rights under the Bankruptcy Code.

Stewart successfully moved for dismissal in the trial court, and the case landed in New Orleans before the Fifth Circuit.  Writing for a unanimous panel, Justice King examined the plain language of § 525(b), which states that “No private employer may terminate the employment of, or discriminate with respect to employment” of a debtor under the Bankruptcy Code.  On its face, this would seem to be pretty good language for Burnett, assuming that refusing to offer someone a job constitutes “discrimination with respect to employment.”  But the Court held that it could not make that assumption.  Taking § 525 as a whole—i.e. including a consideration of all subparts of the statute in interpreting the one subsection—the Court held that “discrimination” in § 525(b) does not include refusing to hire.  This is because of the language of § 525(a), which applies only to government employers.  That section states that a governmental entity may not “deny employment to, terminate the employment of, or discriminate with respect to employment against” a debtor.  The Court held that, by specifically separating out “denying employment” from “discriminating,” Congress intended to allow a denial of employment by private employers where it would not allow it by a governmental unit.

The ruling is potentially a bit of a harsh blow to job seekers already experiencing tough times, but Justice King correctly observed that the Court’s hands were more-or-less tied in this case.  The Court applied Statutory Interpretation 101 and came up with the result it did.  Without a good excuse to dive into policy considerations, it would be difficult to justify another result.

Curiously though, this may not be the last we have heard of this issue.  In light of recent press reports that employers are now using employment status as a hiring criterion and the EEOC’s investigation as to whether such a criterion more heavily affects minority workers, bankruptcy status could draw similar scrutiny.  While the Bankruptcy Code might allow private employers to refuse to hire on this basis, Title VII might not if the practice causes a disparate impact.  It could lend yet another wrinkle to our increasingly complex employment law landscape.

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Killing the Messenger

Thursday, February 17th, 2011

Ever seen one of those commercials they show on daytime TV?  You know the ones:  “Have you been injured by . . .” fill-in-the-blank-with-the-manufactured-villain-of-the-day? Asbestos?  Stop-smoking aids?  A hair-trigger airbag?  A plate of bad clams?  The list goes on and on.

Law firms have, for some years, used advertisements like this to drum up business in mass-tort, products liability cases.  The cases tend to be very similar in nature, and a lot of the same scientific and expert witness evidence can be used in each one.  As a result, there’s every incentive to gather as many cases of the same kind as possible to increase the profitability of pursing them, and, indeed, it is sometimes the only way to make pursuing such matters cost-effective at all.  It is a tactic that has served law firms well over the years, but, to be fair, it has also served their clients well.

So what’s a potential defendant that becomes the subject of a law firm’s scrutiny to do?  Sit and wait for the inevitable flood of lawsuits to be filed?  Not if you’re Zimmer, Inc., you don’t.

As it describes itself (and believe me, as a result of what you’re about to read, I won’t dare deviate from the script), Zimmer develops, manufactures, and sells artificial knees, hips, and other orthopedic devices, including the Zimmer NextGen® Knee System.  In a complaint filed yesterday in Indiana federal court, Zimmer takes on a series of lawyers and law firms based in Michigan and Texas for making false and defamatory statements about the NextGen® system, as well as improperly using Zimmer’s trademarked intellectual property.  According to Zimmer, the defendant lawyers and firms had promulgated websites to search for potential clients and made a series of “false, misleading, and defamatory” statements about Zimmer’s products, including claims that the NextGen® knee implant had been subject to federal recall and that “the Zimmer NextGen [sic] knee replacement has been linked to pain, failure and revision surgery!”  (Exclamation point, theirs.  Omission of serial comma, also theirs.)  If you’re with Zimmer, and you’re reading this, I’m not linking to the allegedly offending websites.  If you’re not with Zimmer, Google is your friend.

Texas law protects any statement made in the course of litigation as privileged.  Therefore, anything said in a pleading is not something you can sue over.  Courtrooms are rather like boxing rings.  It’s okay to hit someone, as long as you do it in the ring.  And Texas appellate courts have confirmed that the privilege applies to any statement that bears some relationship to a court proceeding and is in furtherance of an attorney’s representation.

Zimmer’s suit is troubling because it attacks that privilege (ironically, while its own accusations are protected by an analogous one).  At what point does protection of your trademark and your good name become a campaign to chill potential lawsuits and prevent potential plaintiffs from knowing they may have claims?  While a claim that Zimmer’s implant has been subject to recall is fairly easily verifiable, a claim that it has been “linked to pain, failure and revision surgery” is not so easy.  That said, the notion that any mechanical medical implant has not been “linked to pain, failure and revision surgery” in at least a few instances seems unlikely.  Regardless, attacks on free speech—even commercial speech—should be approached carefully.  I hope the federal court will do so.

Tip o’ the hat to Courthouse News Service for the link to Zimmer’s complaint.

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EA and the NCAA v. the folks who play the games….

Tuesday, February 15th, 2011

What do the estates of the late Bob Marley and John Steinbeck, the NFL Players Association, and the Comic Book Legal Defense Fund all have in common?  All have weighed in on the case of Keller v. Electronic Arts, Inc., an interlocutory appeal of which is pending before the Ninth Circuit Court of Appeals. (In other news, there’s such a thing as the “Comic Book Legal Defense Fund.”)

Sam Keller, a former quarterback for Arizona State and the University of Nebraska, brought suit against Electronic Arts for its unauthorized use of his image in its NCAA Football 2007 game.  The game shows an unnamed player with Keller’s playing number, his listed height and weight from Nebraska’s media guide, and his home state.  The video-game-depicted Keller even has the characteristic visor he wore in his red-shirt senior season for Nebraska.  Keller sued under the theory that EA’s use of his likeness violated his “right of publicity”—both a statutory and common-law right, as recognized in California.  EA conceded that Keller’s complaint alleged a cause of action, but it also pressed several defenses in response, including the doctrines of “transformative use” and “public interest,” plus a defense for reporting, which is pretty much what it sounds like.

In a nutshell, the First Amendment protects artistic works that contain “significant transformative elements” or where the value of the work does not derive primarily from the celebrity of its subject.  In other words, if you’re going to use someone else’s likeness, get creative.  If you’re going to call it art, take some artistic license.  For example, one case found the doctrine protected a comic book publisher whose magazines depicted musicians Johnny and Edgar Winter as half-human, half-worm cartoon characters, and renamed them “Johnny and Edgar Autumn.”  (This really isn’t so bad as it sounds.  Have you ever actually seen Johnny Winter?)  In her examination of EA’s position, Judge Claudia Wilken, the trial court judge, ruled that EA’s depiction was insufficiently “transformative” to invoke the doctrine.  She rejected EA’s argument, as a result.

The “public interest” exception—true to its name—protects matters that are distinctly within the public interest, like depictions of politicians, celebrities, and yes, athletes.  The exception applies when the way a person makes a living naturally draws attention to who he is and how he does it.  Realistically, this is probably EA’s best argument, but it has problems all the same, as Judge Wilken again pointed out.  She noted that EA was not just reporting on events—historical or otherwise—but was creating something new and doing it with Keller’s likeness.  (Just not new enough to satisfy the “transformative use” doctrine.  Perhaps if they’d made him half-worm . . . .)

Finally, Judge Wilken rejected EA’s “reporting” defense on the grounds that it applies only to more traditional types of reporting, such as print, radio, and television journalism that relate actual, historical events.  EA’s use, according to Judge Wilken, went further than mere reporting about Keller.

College athletes have long complained about being unpaid pawns in the multi-billion dollar game of modern college athletics.  Indeed, the NCAA, universities, media outlets, and others have all made tidy profits from the labors of student-athletes, while censuring any athlete with the temerity to ask for a piece of the pie.  Keller—like the majority of players depicted in any of EA’s NCAA titles—is not one of those who attained professional sports glory.  His case, however, could change the landscape for all manner of media, from video games to movies to books to audio recordings.  If Keller can recover for the use of his image, presumably any college athlete in any sport can do the same, and the result could have a substantial impact on companies like EA—and, according to EA’s appellate briefing—on documentary filmmakers and anyone who writes an “unauthorized” biography or report.  But dire warnings of artistic catastrophe aside, is it too much to ask for a guy who now spends his days managing a hotel bar in Scottsdale to get a little something for generating so much wealth for others?

Tip o’ the hat to the Internet and E-Commerce Law Blog.

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