Could The NCAA Wind Up Costing Us Biographical Works And Documentaries?

The Ninth Circuit Court of Appeals ruled today on Sam Keller's lawsuit against EA Sports. The former Nebraska quarterback sued over his likeness in EA Sports' "NCAA Football" (much like the class-action O'Bannon case, but separate). The court ruled that EA Sports had a First Amendment issue in the case, but ultimately denied EA Sports' appeal. Two of the three judges on the panel argued EA Sports' “use does not qualify for First Amendment protection as a matter of law because it literally recreates Keller in the very setting in which he has achieved renown.” To which dissenting Judge Sidney Thomas responded:

The logical consequence of the majority view is that all realistic depictions of actual persons, no matter how incidental, are protected by a state law right of publicity regardless of the creative context. This logic jeopardizes the creative use of historic figures in motion pictures, books, and sound recordings. 

What this means is any subject's depiction in a documentary, biopic, or any other work could be subject to an injunction by said subject. Mark Zuckerberg could have halted Social Network if he felt it painted him in a bad light. Jack Torrance would not be allowed to say, "Here's Johnny" because Carson or McMahon weren't compensated. And if you were doing alternate reality fiction, you wouldn't be able to use real celebs or politicians. Even the heads-in-jars on Futurama could be in trouble if it's determined those have anything to do with that celebrity's "realistic setting." Behind The Candelabra, Game Change, and You Don't Know Jack would all be in jeopardy.
While the NCAA has decided not to renew their license with EA Sports, some schools have continued with individual deals through the Collegiate Licensing Company. By NCAA rule, athletes cannot profit from the games, not even a free copy.
Read more at the Electronic Frontier Foundation.