March 28, 2014

The Right of Publicity in Video Games Plays Hardball with the First Amendment, Part 2

Guylyn R. Cummins

Part 1 of this article analyzed Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013), one of two recent cases in which the Third and Ninth Circuits, over strong dissents, held that Electronic Arts' realistic depiction of college football players in video games showing them playing football is not "transformative" enough to avoid liability for using their likenesses and player biographical information.

Part 2 analyzes In re NCAA Student-Athlete Name & Likeness Licensing Litigation (Keller) v. Electronic Arts Inc., 724 F.3d 1268 (9th Cir. 2013), wherein the Ninth Circuit reached the same result on identical facts. Both cases construe the right-of-publicity (misappropriation) tort in the context of college football video games in a way that has ramifications that may dangerously impact protections afforded by the First Amendment for other realistic, but unauthorized, expressive works. The dissenters argue that these holdings put at risk the ability for creators to produce other realistic, but unauthorized, expressive works based on historical events and people. As discussed below, that argument appears to be true.

The Keller Case


In NCAA Student-Athlete Name & Likeness Licensing Litigation (Keller) v. Electronic Arts Inc., 724 F.3d 1268 (9th Cir. 2013), the Ninth Circuit held that a college football player could pursue a right-of-publicity claim over the use of his likeness in a football video game—notwithstanding the game producer's assertion of First Amendment defenses. In so ruling, the Ninth Circuit borrowed heavily from the opinion in Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013). The Keller majority drew a strong dissent, similar to Hart,by Judge Thomas, who underscored that the court's decision now poses risks for the producers of realistic, but unauthorized, expressive works based on historical events and people. 

Keller also sets up an unusual incongruity where an expressive work could be considered protected speech for purposes of a Lanham Act false-endorsement claim, but not for a right-of- publicity claim, even though the two claims are highly similar, as the Ninth Circuit concedes.  See Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1110 (9th Cir. 1992); accord Hart, 717 F.3d at 155 ("'a Lanham Act false endorsement claim is the federal equivalent of the right of publicity,'" citing  ETW Corp. v. Jireh Publ'g, Inc., 332 F.3d 915, 924 (6th Cir. 2003) (the Tiger Woods right of publicity case)). 

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