Appeals Court Rules on Use of Athletes in Video Games

Whether or not the First Amendment protects celebrity exploitation is a hot topic in the legal system.
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Jim Brown

The Ninth Circuit Court of Appeals has handed down a pair of big decisions in two disputes involving the likeness of athletes in sports-themed video games. 

One case addressed football Hall of Famer Jim Brown's lawsuit against Electronic Arts over Madden NFL. The other case addressed a class action lawsuit brought by college athletes such as quarterback Samuel Keller against EA and the National Collegiate Athletic Association over the game NCAA Football.

The athletes didn't like the fact that their images were used in the games (or so they alleged). But the two lawsuits had differences and as such, the appeals court reaches different conclusions. Brown loses. Keller and his legal teammates win. 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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First, the Brown case.

The plaintiff, who besides being a former football star also has done a lot of acting work in Hollywood, alleged that EA violated a provision of the Lanham Act by using his likeness. That provision prohibits companies from misleading consumers as to the source of origin for a product. In many ways, it's similar to the "passing off" claim made by Rihanna against a U.K. fashion retailer over a jersey T-shirt, which in a coincidental bit of timing, just went Rihanna's way earlier today.

Brown is not as lucky as Rihanna.

EA defended itself by pointing to Rogers v. Grimaldi, an important case that articulated a test for whether there's "artistic relevance" in creative works that make use of someone's trademark. At a district court level, a judge granted EA's motion to dismiss the Lanham Act claim because of the conclusion that Brown couldn't beat EA's "artistic relevance" argument. On appeal, Brown challenged the applicability and analysis of the Rogers test.

Brown wins.

Ninth Circuit Judge Jay Bybee writes:

"With regard to artistic relevance, even presuming that EA officials have denied the inclusion of Brown’s likeness in the game, the district court could conclude, having reviewed the versions of Madden NFL provided to the court that the likeness of a great NFL player is artistically relevant to a video game that aims to recreate NFL games."

The judge also addresses the allegation that EA misled consumers as to his involvement with the game, and here articulates a standard which shows why in cases where First Amendment speech is involved, plaintiffs like Brown have a tough time. Specifically, the judge says that a plaintiff has to show a defendant has "explicitly misled" consumers about the plaintiff's involvement. The judge writes:

"Instead, [Brown's] allegations, if taken as true, only demonstrate that (1) the public can generally be misled about sponsorship when marks are included in products; (2) EA explicitly stated that Brown’s likeness appears in Madden NFL; (3) EA tried to disguise its use of Brown’s likeness, if anything making consumers less likely to believe that he was involved; (4) EA was dishonest with Brown’s attorney about the inclusion of his likeness in the game; and (5) EA suggested to a group of individuals at an academic conference that the players whose likenesses were used in Madden NFL had signed licensing agreements with EA. There is simply no allegation that EA explicitly misled consumers as to Brown’s involvement, and thus no problem with the district court deciding this issue in response to a motion to dismiss."

Thus, Brown loses. Here's the full decision.

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As for the other lawsuit, Keller and other former college athletes alleged straight that their publicity rights were violated in games. Unlike the Brown review, there was no suggestion of any endorsement. Keller's lawsuit shouldn't be confused with similar but different litigation involving the question of whether the NCAA and its licensees have engaged in an antitrust conspiracy in forcing amateur athletes to sign over their image rights.

At the district level, it was determined that EA couldn't use the First Amendment to defeat the lawsuit at the early stages by saying that the use of the athletes' likenesses in the game was clearly "transformative," and thus a fair use. On Wednesday, Judge Bybee affirms the lower court, relying on the "realistic" nature of the game in question:  

"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 ... Given that NCAA Football realistically portrays college football players in the context of college football games, the district court was correct in concluding that EA cannot prevail as a matter of law based on the transformative use defense at the anti-SLAPP stage." 

Here's the full decision.

The ruling puts the Ninth Circuit in line with the Third Circuit, which recently dealt with almost the exact same issue in a case involving former Rutgers quarterback Ryan Hart's lawsuit against Electronic Arts for allegedly violating his publicity rights in the video game "NCAA Football." In fact, Judge Bybee's decision discusses Hart, as does the dissent, and both cases speak about the same lineage of cases (involving the Three Stooges, No Doubt, etc.) that make up the body of law addressing when it is fair or not to use a celebrity's likeness.

A number of big entertainment studios were quite disappointed by the Third Circuit's decision in Hart, seeing it as a threat to free speech. (For example, the Iraqi veteran who lost a case against producers of The Hurt Locker for violating his likeness is challenging that ruling and might cite today's Keller decision in support of a reversal.) On the other hand, the Screen Actors Guild has lined up behind those asserting the value of publicity rights. There likely will be a push to get the issue to the U.S. Supreme Court soon, but the fact that there is not much breathing room between appellate circuits here dims the chances of a review.

Twitter: @eriqgardner