The Ninth Circuit Court of Appeals Finds That The Use of College Football Player's Likeness in a Video Game is Not Protected by the First Amendment as a Matter of Law

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In a decision that echoed a recent decision by the Third Circuit Court of Appeals, the Ninth Circuit Court of Appeals found that the use of the likeness of college football players in a video game is not subject to protection under the First Amendment as a matter of law and, as a result, an action brought by college football players against a video game maker for violation of their right of publicity should not be dismissed under California's anti-SLAPP statute.

As previously reported in the July edition of this newsletter, the Third Circuit ruled that the use of the likeness of Ryan Hart, a former college football player, in a video game did not violate Mr. Hart's right of publicity. Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013). The lower court had granted defendant's motion for summary judgment finding that defendant's use of Mr. Hart's likeness was protected by the First Amendment. The Third Circuit Court of Appeals reversed. In doing so, the Third Circuit applied the Transformative Use Test which is a balancing test between the First Amendment and the right of publicity based on whether the work in question adds significant creative elements so as to be transformed into something more than a mere depiction of a celebrity likeness or imitation. In applying that test, the Court found that the manner in which Mr. Hart's avatar in the video game was depicted and how it was used was not transformative, and, as a result, defendant Electronic Arts (EA), as the video game maker, was not able to escape the right of publicity claim at least at the summary judgment stage. 

On July 31, 2013, the Ninth Circuit Court of Appeals reached a similar conclusion in a nearly identical set of facts involving other college football players and EA. In re NCAA Student-Athlete Name & Likeness Licensing Litig., No. 10-15387, 2013 U.S. App. LEXIS 15649, at *5 (9th Cir. Cal. July 31, 2013). As was the case in Hart, the Court in In re NCAA, had to balance the right of publicity of a former college football quarterback against the First Amendment rights of the same video game manufacturer to use his likeness in its video games. Samuel Keller, the former quarterback for Arizona State and Nebraska, objected to use of his likeness in EA's NCAA Football series of video games and filed a putative class-action complaint asserting that EA violated his 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 (SLAPP) under California's anti-SLAPP statute. Cal. Civ. Proc. Code § 425.16 (2013). California's anti-SLAPP statute is designed to discourage suits that masquerade as ordinary lawsuits but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so.

In applying the Transformative Use Test, which it found to be applicable to a right of publicity claim, the Court found that EA's use of a college football player's likeness in a video game, as the Third Circuit had earlier found, did not contain significant transformative elements to establish the transformative use first amendment defense as a matter of law because EA literally recreated Keller in the very setting in which he had achieved renown - EA replicated Keller's physical characteristics in the context of playing college football in actual college football stadiums. The appeals court concluded that given that the NCAA Football game 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.

The Ninth Circuit Court noted that this case was materially identical to the Hart case in the Third Circuit. 

As the dissent noted in the Ninth Circuit In re NCAA opinion (there was a similar dissent in the Third Circuit Hart opinion), the stakes in this particular game "are not small" as it could have widespread implications with respect to the future depiction of actual persons, not just in video games, but in other types of artistic works as well. While the ramifications may not be as broad as the dissenting judge envisions, the final outcome will certainly be of tremendous significance to that part of the video game industry that produces video games that attempt to realistically reproduce the actions of actual participants in sporting events. Both cases will be closely watched as they proceed to trial.