A story on Slashdot tells of a watershed moment in the fight between athletes and game manufacturers who use their likenesses. A district court judge considered the digital representations “expressive works” comparable to paintings and photos of celebrities and athletes, which are protected and require no payment to the athlete or celebrity.

On one hand, the game company playing defense in footballer Samuel Keller’s class action lawsuit is Electronic Arts, not some one-man band just trying to eek out a living writing games. While EA didn’t use the players’ names, other features such as style of play, haircut, skin color, and facial features so closely resembles the athletes that there’s little question it was intentional. This – in the long game – could persuade gamers who want to play with famous atheletes to opt for EA Sports’ titles, even though EA paid nothing for the celebrity status.

On the other hand, we’re not talking about a group of people that otherwise makes no money. Athletes are paid to play a sport, not build star power enough to market their likeness. They already get pretty substantial payouts for acting gigs, endorsements, and special appearances, on top of what is almost universally considered inordinately large salaries and signing bonuses.

Too, let’s not forget ’90s singer Deee-Lite, who tried suing Sega over her supposed likeness in Space Channel 5 for the Dreamcast, lost, and then had to pay $600,000 in court costs. Not an easy fiscal pill for a has-been to swallow. With older players such as Jim Brown hopping on Keller’s coattails, they’d better keep in mind that any lawsuit bears a chance of not only failure, but significant losses.

The rise of video game profits, popularity, and prestige means that this is a market for celebrities and athletes alike, and not one that should be ignored so that giants like EA can make money off another’s celebrity. However, I applaud the ruling because the line has to be drawn somewhere on how ridiculous lawsuits about likeness can be. After all, if all game manufacturers caved and settled in cases like this, you’d have everyone from Miley Cyrus to PDiddy looking for any chance to sue, claiming that any singer with extensions and cut off jean skirts must be Cyrus’ likeness, or that any character with cornrows and bling must be PDiddy.

In the end, this whole affair may not matter, since the moment that gamers realize that 99% of sports games are slapped together regurgitation of last year’s code, maybe they’ll pass for a decent game instead.