Without comment, the Supreme Court on Monday declined to side with Electronic Arts' contention that it had a First Amendment right to use professional football players likenesses without their permission in one of the world's most popular video games, Madden NFL.

EA's petition to the Supreme Court had attracted widespread interest from academics, digital rights groups, (PDF) and others. The dispute was at the intersection of the right-of-publicity claims balanced against modern technology allowing for virtual, realistic portrayals of people—in this case, professional athletes who want a piece of the financial pie.

In its petition to the justices, the game maker claimed it should not be allowed to be sued simply because it made a game that looks too real that it nearly mirrored reality. The company wanted the high court to accept its assertion that its life-like depiction of the virtual gridiron was covered by the First Amendment.

"According to the Ninth Circuit, the depiction of a person's image or likeness in an expressive work enjoys First Amendment protection against a right-of-publicity claim only if the depiction sufficiently alters or 'transforms' the plaintiff’s image or likeness. That rule is constitutionally perverse: it affords First Amendment protection only to fanciful or distorted portrayals, not accurate or realistic ones. The rule also chills expression, both because it is hard to predict what a court will decide is sufficiently 'transformative,' and because such an inquiry inevitably requires a court to make a subjective judgment about whether a depiction is 'artistic,' thus warranting protection, or 'literal,' and thus subject to liability," EA said in its petition (PDF) to the Supreme Court. EA was referencing last year's decision (PDF) from the 9th US Circuit Court of Appeals.

Here's what Judge Raymond Fisher of the 9th Circuit said about EA's position, which the Supreme Court let stand: "We hold EA's use of the former players' likenesses is not incidental because it is central to EA's main commercial purpose—to create a realistic virtual simulation of football games involving current and former NFL teams." The same San Francisco-based appeals court sided with NCAA college football players in their lawsuit against EA, a 2013 ruling that resulted in a $40 million settlement.

Lawyers for players suing EA had urged (PDF) the justices to deny weighing into the case and to avoid the First Amendment issues EA has raised because "there is no evidence that this, or any other, right-of-publicity decision has chilled the exercise of expressive rights."

The right of publicity was first recognized in 1953 in an appeals court case about professional baseball cards. The claim is most often invoked by celebrities and professional athletes. The right of publicity gives people an economic right in their names and likenesses so they may profit from the commercial value of their identities.

Players suing EA included Michael Davis, Vince Ferragamo, Billy Joe Dupree, Samuel Michael Keller, and others. The high court's inaction Monday is likely to pave the way for a settlement.