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February 3rd, 2015
On Further Review: Former NFL Players’ Right of Publicity Suit Advances
There was a big development in the closely followed Davis v. Electronic Arts, Inc. case - a case focusing on the alleged unauthorized use of player images and likenesses in the popular Madden NFL video game series. The case has important implications for people working not only in the entertainment and sports fields, but in the advertising industry as well. Here's what happened.
Background. Davis is a class action brought by several former NFL players upset that recent games in the Madden NFL series feature "famous historical teams" with players "closely resembling NFL retirees" including the Plaintiffs and as many as 6,000 other former players. The Plaintiffs alleged violations of California's statutory and common law right of publicity based on Electronic Arts (EA)'s unauthorized use of the players' physical likeness in the Madden NFL games. The Plaintiffs alleged that, without the players' permission, EA programmed its Madden game to feature "digital avatars" of the former players that accurately reflect "individual, physical and biographical characteristics" of the plaintiffs during their NFL careers, including "height, weight, skin tone, position, team, years in the [NFL] and athletic ability."
District Court Decision. Before the District Court, EA moved to dismiss the Plaintiffs' claims, arguing that its use of the former players' images or likenesses was sufficiently "transformative" to be entitled to First Amendment protection. EA also argued that the Madden games were entitled to protection under California's public interest or public affairs exception to the state's statutory right of publicity. The court rejected both of EA's arguments, finding its use of the likenesses neither "transformative" nor entitled to protection under California's public interest exception, which has been held to shield reporting and discussion of facts about professional sports.
Ninth Circuit Opinion. The United States Court of Appeals for the Ninth Circuit affirmed the district court's order. The appeals court concluded that EA's use was not "transformative" because it merely "replicates players' physical characteristics and allows users to manipulate them in the performance of the same activity for which they are known in real life - playing football for an NFL team." The Court also held that EA was not entitled to the protection of either the public interest or public affairs exception because the game was not "publishing or reporting factual data" but rather was a way for players to "play their own virtual football games, not a means for obtaining information about real-world football games."
Interestingly, EA argued for the first time on appeal that its use of the players' likeness was "incidental" to the game as a whole and that the commercial value of any lone players' image was
de minimis. But the Ninth Circuit rejected this argument too. The Court noted that EA goes to great lengths to incorporate accurate likenesses of the players depicted in the game, "including paying millions of dollars to license the likenesses of current players," belying the fact that the likeness could be merely "incidental" to the game overall. Moreover, the Court noted that if EA truly believed there was little value in having the player's image in the game, it would not "mimic each individual player" or license the likeness of current NFL players. The Court concluded that the accurate depiction of the former-players' likenesses went to the heart of EA's purpose in creating the Madden NFL games: to create a highly accurate "virtual simulation of an NFL game."
For now, it is unclear whether EA will appeal the Ninth Circuit's decision to the Supreme Court, or proceed to litigate against the former players before the Northern District of California.
If you have questions about the Davis case and right of publicity law, or about any other intellectual property law matters, please contact Edward Rosenthal at (212) 826 5524 or firstname.lastname@example.org, Rick Kurnit at (212) 826 5531 or email@example.com, Andrew Ungberg at (212) 705 4868 or firstname.lastname@example.org, or any other member of the Frankfurt Kurnit Intellectual Property Group.
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