Former NFL players sued Electronic Arts alleging that EA’s use of the former players’ likenesses in their Madden NFL series of videogames violated their right of publicity under California Civil Code 3344 and California common law. EA moved to strike the complaint as a strategic lawsuit against public participation under California’s anti-SLAPP statute. The district court denied the motion and the Ninth Circuit affirmed, concluding that EA had not shown a probability of prevailing on its incidental use defense, and its other defenses are effectively precluded by a prior decision.
The Ninth Circuit previously held that EA’s unauthorized use of a former college football player’s likeness in a series of videogames was not, as a matter of law, protected by the First Amendment. In that case, the court rejected several of the defenses EA raised here on materially indistinguishable grounds. EA advanced one additional argument on appeal – that its use of the former players’ likenesses is protected under the First Amendment as “incidental use.”
Because EA filed its motion to strike under the anti-SLAPP statute, it had the burden to show a probability of prevailing on its incidental use defense. Though this defense was not raised in the district court, the panel exercised its discretion to address this issue. The parties agree that the incidental use defense exists under California law, and rely on the same cases and treatises to define the scope of the defense. Under these authorities, a number of factors are relevant, including (1) whether the use has a unique quality or value that would result in commercial profit to defendant, (2) whether the use contributes something of significance, (3) the relationship between the reference to plaintiff and the purpose and subject of the work, and (4) the duration, prominence or repetition of the name of likeness relative to the rest of the publication.
The court found that under the first and second factors, the former players’ likenesses have unique value and contribute to the commercial value of Madden NFL. EA acknowledged that the videogames are successful in part because they allow consumers to simulate play involving any of the 32 NFL teams using current players. Having acknowledged the likenesses of current NFL players carry substantial commercial value, EA failed to offer any persuasive reason to conclude otherwise as to former players. EA argued that, because there are several thousand players depicted in Madden NFL, any individual player’s likeness has only a de minimis commercial value. The panel saw no basis for such a sweeping statement. Indeed, the court found that under the third and fourth factors, the former players’ likenesses are featured prominently in a manner that is substantially related to the main purpose and subject of Madden NFL – to create an accurate virtual simulation of an NFL game. Accurate depictions of the players on the field are central to the creation of an accurate virtual simulation of an NFL game. Accordingly, the court found that EA has not established a probability of prevailing on its incidental use defense, and affirmed the district court’s denial of EA’s motion to strike.