April 01, 2016

Madden NFL Lawsuit Gets Sent Back to the Locker Room

George Blazeski – April 1, 2016

On Monday, March 21, the Supreme Court of the United States declined to hear arguments in Electronic Arts v. Davis, a case originating from the Ninth Circuit. This was bad news for the petitioner, Electronic Arts (EA), who was seeking to strike the complaint under California's anti-SLAPP lawsuit. Now EA faces the prospect of a full trial in the Northern District of California.

EA is defending its portrayal of former NFL players in its Madden NFL video games. EA compensated current NFL players for the use of their likenesses but did not similarly compensate former players, nor did EA seek permission to use their likenesses. The names of the players were not used, but other attributes were utilized like number, position, and physical attributes.

The Ninth Circuit issued its ruling on January 6, 2015. EA's main defense was that its use of former players' likenesses is protected under the First Amendment as incidental use. The Court ruled that because use of the players' likenesses is central to EA's main purpose, to create a realistic virtual simulation of football games involving current and former NFL teams, such use was not incidental. Since EA did not establish that there was a probability that they would prevail in the claim, its motion to strike was denied.

For those unfamiliar with the Madden series, recent entries have constructed realistic simulations of the football experience down to the stadiums, players, coaches, referees, and fans. EA pays the National Football League Players Association millions of dollars to use the likenesses of current players. Starting in 2001, Madden also featured historic teams such as the 1979 Los Angeles Rams, whose quarterback is one of the plaintiffs. EA did not obtain a license for the players included on these historic teams. While player names were not used, physical characteristics such as height, weight, and race were reproduced in the games.

Comparisons are frequently made between this case and a similar suit EA received regarding its NCAA football series. The NCAA video games also did not utilize player names, but included very accurate portrayals of players with the same height, weight, hometown, other attributes of college athletes. No final decision was reached in that case as the parties settled to end the dispute

Final judgment likely won't come for quite some time in this case. In the meantime, legal counsel for other entertainment media should caution their clients against recreating a high level of detail without securing full rights to a person's likeness beforehand. As this saga demonstrates, securing these rights upfront can prevent large legal headaches down the road.

George Blazeski is with McCarter & English, LLP, in Boston, Massachusetts.

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George Blazeski – April 1, 2016