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IP/Entertainment Case Law Updates

Davis v. Electronic Arts Inc.

District court holds that retired football players were not “readily identifiable” from digital avatars intended to represent those players in popular video game “Madden NFL,” and therefore granted partial summary judgment dismissing retired players’ claims under California right of publicity statute.

Former NFL players brought this putative class action lawsuit against video game publisher Electronic Arts, contending that EA misappropriated their likenesses in the popular “Madden NFL” video game. EA moved for partial summary judgment on the former players’ claim under California’s right of publicity statute, Civil Code Section 3344, which generally prohibits unauthorized use of an individual’s name, likeness, voice, signature or photograph.

The district court explained that the statutory right of publicity claim required a showing that EA used visual images of the players that were “readily identifiable” without resorting to other contextual information. EA’s game included digital avatars of the former players, as well as information concerning their former teams, positions, physical characteristics (such as height, weight, skin tone and appearance) and biographical characteristics (such as age and years in the NFL). While such contextual information might be sufficient to maintain a claim under the common law, the court explained, it cannot be used to state a claim under the California statute.

The district court found support for this distinction in the Ninth Circuit’s 1992 landmark Vanna White case, White v. Samsung Elecs. Am., Inc., in which Samsung had used a robotic version of the famous “Wheel of Fortune” hostess in one of its television advertisements. The Ninth Circuit found that Samsung had not misappropriated White’s likeness under Section 3344, because the robot itself did not resemble White without referring to other contextual clues. The district court here took this as “clear authority that mere contextual clues as to the identity of an otherwise ambiguous image will not support a claim under Section 3344.”

Finding that the former players could not show that EA’s in-game avatars were readily identifiable as those players without resorting to contextual information, the district court granted EA’s motion for partial summary judgment on the players’ claim under the California statute.

Summary prepared by Tal Dickstein and Kyle Petersen

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