EA Can’t Use First Amendment Defense In Right Of Publicity Case

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first-amendment500In June, Shannon wrote for us about one of several lawsuits against against Electronic Arts (EA) concerning the use of players’ likenesses. The controversy surrounds the increasingly-realistic depictions of current and, especially, former players in games like NCAA Football and NCAA Basketball. The disputes have become serious enough that, a couple of weeks ago, the NCAA declined to renew its long-standing contract with the games manufacturer. (The game will henceforth be marketed as simple “College Football“). Yesterday, the Ninth Circuit issued a decision that spells out even more bad news for EA.

The lead plaintiff in the case was Samuel Keller, a starting quarterback for Arizona State and later Nebraska. The court first explained the attention-to-detail that went into creating the avatars of players like Keller:

Every real football player on each team included in the game has a corresponding avatar in the game with the player’s actual jersey number and virtually identical height, weight, build, skin tone, hair color, and home state. EA attempts to match any unique, highly identifiable playing behaviors by sending detailed questionnaires to team equipment managers.

More specifically, in the case of this particular plaintiff:

In the 2005 edition of the game, the virtual starting quarterback for Arizona State wears number 9, as did Keller, and has the same height, weight, skin tone, hair color, hair style, handedness, home state, play style (pocket passer), visor preference, facial features, and school year as Keller. In the 2008 edition, the virtual quarterback for Nebraska has these same characteristics, though the jersey number does not match, presumably because Keller changed his number right before the season started.

Keller and the other plaintiffs argue that by using their likenesses, EA has violated their right of publicity, and EA responded with a First Amendment defense. In agreeing with the lower court’s holding that the First Amendment defense does not apply here, the Ninth Circuit frames its holding around California’s transformative use test. Citing a 2001 California Supreme Court case, lays out the elements for a valid transformative use defense:

First, if “the celebrity likeness is one of the ‘raw materials’ from which an original work is synthesized,” it is more likely to be transformative than if “the depiction or imitation of the celebrity is the very sum and substance of the work in question.” Second, the work is protected if it is “primarily the defendant’s own expression”—as long as that expression is  something other than the likeness of the celebrity.” … Third, to avoid making judgments concerning “the quality of the artistic contribution,” a court should conduct an inquiry “more quantitative than qualitative” and ask “whether the literal and imitative or the creative elements predominate in the work.” Fourth, the California Supreme Court indicated that “a subsidiary inquiry” would be useful in close cases: whether “the marketability and economic value of the challenged work derive primarily from the fame of the celebrity depicted.” Lastly, the court indicated that “when an artist’s skill and talent is manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit his or her fame,” the work is not transformative.

(Internal citations omitted)

Cutting through an analysis that refers to Paris Hilton and the band No Doubt, the Ninth Circuit ultimately holds that the players’ likenesses in the game are not sufficiently transformative, so the First Amendment defense cannot apply. This passage, quoting the lower court, best distills why the game is not transformative:

As the district court found, Keller is represented as “what he was: the starting quarterback for Arizona State” and Nebraska, and “the game’s setting is identical to where the public found [Keller] during his collegiate career: on the football field.”

Since the game “realistically portrays college football players in the context of college football games”, the First Amendment defense was not allowed to apply. The case will now move forward alongside that of Ryan Hart, which we’ve written about before. The implications of these cases are fascinating not only in the context of video games, but even more broadly – as THR points out: “The rulings figure to impact Hollywood at large since entertainment often makes use of real-life personalities in works like biopics or thinly-veiled fiction.”

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