On review it’s not that bad, as Judge Cooper only deals with Brown’s Lanham Act claim for false endorsement. This is his weakest claim by far; even without the First Amendment defense I don’t think a jury would have found that the existence of his character in the game constituted an endorsement. Once she dismissed that lone federal law claim she punted to state court for the common law right of publicity and Civil Code 3344 claims, which are much stronger imho.

The one finding I strongly disagree with is the judge’s claim that Madden is an “expressive work,” citing the Tiger Woods painting case from the 6th circuit. To me it seems to be nothing of the sort. It’s just electronic football.

If you can track down this opinion I’d like to see it. Like you I find this weak. It’s not to say he should automatically win, but the first amendment as a blanket bar seems wrong. Let’s say I create a game called “Pro golf,” where you can be either Tiger Woods, or Jack Nicklaus — i.e. your avatar looks like those golfers. When they inevitably sue me, would I have a defense that their lawsuit must fail immediately because, hey, “video games are expressive works protected by the First Amendment,” you know.

No, I don’t think that would work at all, so I’m not sure why that works in Jim Brown’s case. Maybe he loses because he can’t prove damages or that they’ve improperly used his likeness in other ways, or maybe that a Cleveland Brown wearing 32 isn’t enough, but the blanket first amendment bar seems wacky.

http://www.nytimes.com/2009/09/30/sports/ncaafootball/30colleges.html?_r=1&ref=ncaafootball