Former Professional Football Players Rumble Over Use of Their Likenesses

Electronic Arts (EA) develops and publishes Madden NFL, a video game that allows users to play virtual football games by controlling avatars of real life NFL players.  EA pays to license current NFL players’ likenesses.  Madden NFL also used former players’ likenesses from 2001 through 2009 for its “historic teams” version.  EA did not get a license to use the former players’ likenesses.  Some of the former players sued EA for violating their California state law rights of publicity and other rights.

This case is similar to Keller v. Electronic Arts, in which a college football player, Samuel Keller, sued EA for violating his California state law right of publicity by using Keller’s likeness without permission.  My post on the Keller case is College QB’s Right of Publicity Slaps Video Game Developer’s Free Speech Rights

Regarding the former NFL players, the Ninth Circuit stated

In Keller, we rejected several of the First Amendment defenses EA raises here on materially indistinguishable grounds.  EA advances one additional argument in this appeal – its use of former players’ likenesses is protected under the First Amendment as ‘incidental use.’  (Opinion pdf pages 3-4).

This post discusses only the new argument made by EA, its incidental use argument.

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College QB’s Right of Publicity Slaps Video Game Developer’s Free Speech Rights

This case involves balancing a video game developer’s free speech rights against a well-known college football player’s right of publicity.  Video game developer Electronic Arts Inc., (EA) is the developer of NCAA Football, a game in which the user controls avatars symbolizing actual college football players.  EA endeavors to accurately duplicate each college football team.  Samuel Keller, the starting quarterback at Arizona State University from 2005 to 2007 and later at the University of Nebraska, took exception to EA’s use of his likeness.  Keller filed a putative class action against EA for violation of his right of publicity under California state law. 

EA moved to strike Keller’s complaint as a “strategic lawsuit against public participation” (SLAPP) under California’s anti-SLAPP statute.  California’s anti-SLAPP statute seeks to prevent lawsuits that are brought to inhibit citizens from exercising their political or legal rights or to punish citizens from exercising those rights.  Video games are entitled to full First Amendment protection.  That issue was not contested in this case.  The district court denied EA’s motion to strike Keller’s complaint.  The Ninth Circuit Court of Appeals affirmed the district court’s decision, ruling that EA’s affirmative defenses against Keller’s right of publicity claim were insufficient to support a ruling in EA’s favor on its motion to strike.  The four affirmative defenses raised by EA, and derived from the First Amendment, were the transformative use test, the Rogers test, the public interest test and the public affairs exemption.

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