On September 11, 2014, the Ninth Circuit heard oral argument on the appeal in Davis v. Electronic Arts (Case No. 12-15737), a class action lawsuit brought by three former NFL Players against Electronic Arts (“EA”), the publisher of the renowned Madden NFL Games. Michael Davis, Vince Ferragamo, and Billy Joe Dupree claimed that EA violated their right of publicity by using their likeness and the likeness of six thousand other similarly situated former NFL players without permission. The Ninth Circuit has yet to issue its ruling on the appeal, but most legal scholars agree that EA has almost no chance of prevailing on the issue in light of the Ninth Circuit’s holding in Keller v. Electronic Arts (Case No. 10-15387) where the Ninth Circuit found that EA unlawfully utilized the images of collegiate athletes in its NCAA Football game series.
Interestingly, EA put forth the same argument in Davis as it did in Keller. Specifically, EA argued that its portrayal of the class members is protected by the First Amendment under the doctrine of transformative use, which analyzes whether the challenged work or product contains significant transformative elements (or value that) does not derive primarily from the celebrity’s fame.
At the oral argument, counsel for EA cited to a footnote in the Keller decision wherein the court reserved the “question of whether the First Amendment furnishes a defense other than those the parties raise.” EA argued that the footnote provided the court with the wiggle room it needed to come to a different conclusion than it did in Keller. EA urged that the court prescribe a second standard for the use of likeness in books, films, and video games. Specifically, EA argued that the extensive labor and detail involved in making a video game should almost guarantee that the product is entitled to First Amendment protection as an expressive work. Judge Marsha S. Berzon was not very receptive to this argument and remarked that the creation of a video game sounded more like a compilation of data than an expressive work. EA responded that a great deal of creative expression is embodied in that compilation. Whether the Court accepts EA’s position remains to be seen.
EA raised a new argument that the depiction of the NFL class members should qualify as incidental use and be protected under the First Amendment. Specifically, EA argued that the avatars that the class members complained of were merely a “few of the thousands of virtual athletes in its Madden NFL video game. “Where the use of plaintiff’s name or likeness is incidental in relation to the defendant’s work as a whole, the use is not actionable under the right of publicity.” It remains uncertain whether this new argument will suffice to overcome the Court’s previous ruling regarding the right of publicity in the context of video games. However, one thing is certain. This issue is ripe for Supreme Court review. There is confusion among the lower courts as to how they should reconcile the right of publicity with the First Amendment rights of video game creators. Arguably, there is already a circuit split on this issue because the Eighth Circuit took a contrary position when it found in favor of a fantasy baseball provider back in 2007.
The circuit split is likely to grow as similar lawsuits continue to develop. For example, Lindsey Lohan recently sued the publisher of Grand Theft Auto V on similar grounds in New York (Case No. 156443, NY Supreme Court). Maybe one more circuit weighing in on the issue will give rise to the circuit split needed to get the Supreme Court’s attention. Or, perhaps that won’t necessary and the Ninth Circuit’s ruling in Davis will be sufficient to get the Supreme Court to grant certiorari.
We will be certain to report back once the Ninth Circuit issues its ruling in Davis.