When football legend Jim Brown sued Electronic Arts Inc. in 2009 for using his likeness in its video games, EA argued that its games are expressive activity protected by the First Amendment. Brown’s lawyers sneered at that argument the same way Brown stared down an opposing lineman.
“EA claims that a victory for Brown spells the death of great literary and artistic works including its own cultural magnum opus, the Madden NFL football video game,” Manatt, Phelps & Phillips partner Mark Lee wrote in a brief to the U.S. Court of Appeals for the Ninth Circuit. “Brown’s positions, however, are in the mainstream.”
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