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IP/Entertainment Case Law Updates

Keller v. Electronic Arts, Inc., et al.

Court denies video game developer’s motion to dismiss former college football player’s right of publicity claims, rejecting developer’s argument that its use of players' physical characteristics and jersey numbers is protected by First Amendment or public interest defense; court also dismisses Indiana right of publicity claim against NCAA for “knowingly approv[ing]” video game developer’s use of plaintiff's likeness.

Plaintiff is a former starting quarterback for Arizona State University and the University of Nebraska. Electronic Arts (EA) developed the “NCAA Football” series of video games. In the games, consumers can simulate football matches between college and university teams. Plaintiff alleged that EA designed the virtual football players to resemble real-life college football athletes, including himself, by using the same jersey numbers, physical characteristics such as height and weight, and home states.

Plaintiff filed suit against EA, National Collegiate Athletic Association (NCAA), and Collegiate Licensing Company (CLC). Plaintiff alleged that NCAA violated Indiana’s right of publicity statute when it “knowingly approved” EA’s use of plaintiff’s likeness. NCAA responded that plaintiff’s claim should fail because he did not allege that NCAA actually used his image or likeness. Under Indiana law, “[a] person may not use an aspect of a personality's right of publicity for a commercial purpose during the personality’s lifetime or for one hundred (100) years after the date of the personality's death without having obtained previous written consent from a person . . . .” Indiana Code § 32-36-1-8. The court held that the plain language of the statute favors NCAA’s position. “Plaintiff argues that NCAA’s liability under Indiana law arises from its knowing approval of EA’s use of his likeness. This interpretation expands liability under the Indiana statute to include persons who enable right of publicity violations. . . . The court declines to adopt plaintiff’s interpretation.”

The court also rejected plaintiff’s argument that NCAA should be held liable under Indiana’s right of publicity statute as a co-conspirator of EA, which used his likeness, because plaintiff did not allege that either EA or CLC, the alleged co-conspirators, violated Indiana right of publicity law. The court accordingly dismissed the claim for violating Indiana’s right of publicity law against NCAA, but granted plaintiff leave to amend to allege that NCAA used his likeness or conspired with others to violate his right of publicity under Indiana law.

Plaintiff alleged that EA violated California statutory and common law right of publicity. California’s right of publicity statute provides, “Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent . . . shall be liable for any damages sustained by the person or persons injured as a result thereof.” Cal. Civ. Code § 3344(a). According to the court, the statutory right of publicity complements the common law right of publicity, which arises from the misappropriation tort derived from the law of privacy. To state a claim under California common law, a plaintiff must allege “‘(1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.’” Hilton v. Hallmark Cards, 580 F.3d 874 (9th Cir. 2009) (quoting Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001)).

EA argued that plaintiff’s California right of publicity claims are barred by the First Amendment and California law. The court rejected these arguments and denied EA’s motion to dismiss the California right of publicity claims.

The court explained that a defendant may raise an affirmative defense that the challenged work is “protected by the First Amendment inasmuch as it contains significant transformative elements or that the value of the work does not derive primarily from the celebrity’s fame” citing Hilton, 580 F.3d at 889. The court discussed Comedy III Prods., Inc. v. Saderup, 25 Cal. 4th 387 (2001), in which the California Supreme Court held that defendant’s “literal, conventional depictions of The Three Stooges,” drawn in charcoal and printed on tee-shirts, did not contain transformative elements that warranted protection by the First Amendment, and Winter v. DC Comics, 30 Cal. 4th 881 (2003), in which the same court held that a comic book depiction of Johnny and Edgar Winter as half-human, half-worm cartoon characters was sufficiently transformative.

In this case, the court held that EA’s depiction of plaintiff in “NCAA Football” is not sufficiently transformative to bar his California right of publicity claims as a matter of law. “In the game, the quarterback for Arizona State University shares many of plaintiff’s characteristics. For example, the virtual player wears the same jersey number, is the same height and weight and hails from the same state. EA’s depiction of plaintiff is far from the transmogrification of the Winter brothers. EA does not depict plaintiff in a different form; he is represented as he what he was: the starting quarterback for Arizona State University [and] the game’s setting is identical to where the public found plaintiff during his collegiate career: on the football field.” The court also rejected EA’s argument that the court should consider the transformative elements of the video game as a whole, noting that such a view is not supported by precedent, and stating that the court’s focus must be on the depiction of the plaintiff, not the game’s other elements.

The court then addressed EA’s public interest defense. According to the court, under California law no cause of action will lie for the publication of matters in the public interest. The court distinguished this case from Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400 (2001),where the court held that the defendants, who operated a website that reported historical baseball team rosters and listed names of players who won awards during each season, were entitled to the public interest defense, and Montana v. San Jose Mercury News, Inc., 34 Cal. App. 4th 790 (1995), where the court applied the public interest defense to defendant newspaper’s posters containing reproductions of newspaper pages reporting on the San Francisco 49ers’ win in the 1990 Super Bowl.

The court held that “NCAA Football” is unlike the works in Gionfriddo and Montana. “The game does not merely report or publish plaintiff’s statistics and abilities. On the contrary, EA enables the consumer to assume the identity of various student athletes and compete in simulated college football matches. EA is correct that products created for entertainment deserve constitutional protection. But it does not follow that these protections are absolute and always trump the right of publicity.” (citations omitted)

The court also rejected EA’s argument that its use fell within the exemption provided by California Civil Code section 3344(d) which exempts from liability “a use of a name . . . or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign.” The court held that section 3344(d) requires the same type of activity as the public interest defense, namely reporting, and that although “NCAA Football” is based on subject matter considered “public affairs,” EA is not entitled to the statutory defense “because its use of plaintiff’s image and likeness extends beyond reporting information about him.”

The court also denied defendants’ motion to dismiss the civil conspiracy claim, granted NCAA’s motion to dismiss the breach of contract claim with leave to amend, and denied EA’s motion to strike under California’s Anti-SLAPP statute.

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