Ninth Circuit: EA's First Amendment Defenses Don't Defeat Former Players' Claims Over Use of Likenesses in "Madden NFL"

For at least the second time in as many years, the Ninth Circuit addressed the interplay between the right of publicity and the First Amendment in the context of sports-themed video games. 

This most-recent case involved claims by former professional football players against Electronic Arts that challenged EA's use of their likenesses in its Madden NFL game.  Specifically, the former players asserted claims for right of publicity under California statutory and common law, conversion, trespass to chattels, and unjust enrichment.

EA moved to strike the complaint under California's anti-SLAPP statute, arguing that plaintiffs' claims would fail based on five First Amendment defenses:  the transformative use defense, the public interest defense, the public affairs exemption in Section 3344(d) of California's Civil Code, the Rogers test, and the incidental use defense.

The Ninth Circuit essentially relied on its earlier decision in Keller v. Electronic Arts, 724 F.3d 1268 (9th Cir. 2013), to conclude that EA's first four defenses were precluded.  (You can find a discussion of Keller and the Ninth Circuit's decision in another former player's challenge to the use of his likeness in Madden NFL issued the same day as Keller here.)

That left only EA's incidental use defense, which the Ninth Circuit assessed using four factors (all internal quotation marks omitted):

(1) whether the use has a unique quality or value that would result in commercial profit to the defendant; (2) whether the use contributes something of significance; (3) the relationship between the reference to the plaintiff and the purpose and subject of the work; and (4) the duration, prominence or repetition of the name or likeness relative to the rest of the publication.

The Ninth Circuit concluded that none of these factors favored EA's incidental use defense, concluding that "EA goes to substantial lengths to incorporate accurate likenesses of current and former players" and that the likenesses "are featured prominently in a manner that is substantially related to the main purpose and subject of Madden NFL -- to create an accurate virtual simulation of an NFL game."

The Ninth Circuit thus affirmed the denial of EA's motion to strike the plaintiffs' complaint.

The case cite is Davis v. Elec. Arts Inc., Appeal No. 12-15737 (9th Cir. Jan. 6, 2015).

Virtual world goods have real world value

The valuation of virtual goods continues to be of interest to both attorneys and gamers--the two of course not being mutually exclusive--and the Law of the Game has an interesting tidbit about a virtual "seizure" of such goods.
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