Antitrust Law Daily Wrap Up, ADVERTISING NEWS: Electronic Arts asks Supreme Court if First Amendment protects video game’s use of player likeness, (Sep 25, 2013)

By Cheryl Beise, J.D.

Video game developer Electronic Arts (“EA”) has filed two petitions asking the U.S. Supreme Court to determine whether its use of realistic college football player images in its NCAA Football video games is protected by the First Amendment. The petitions— No. 13-376 in Electronic Arts, Inc. v. Hart and No. 13-377 Electronic Arts, Inc. v. Keller— were filed on September 23.

In both petitions, EA asks, “Whether the First Amendment protects a speaker against a state-law right-of-publicity claim that challenges the realistic use of a person’s name or likeness in an expressive work.”

At issue are two recent federal circuit court decisions denying EA’s motion to dismiss state law publicity rights claims on First Amendment grounds. In Electronic Arts, Inc. v. Hart (“Hart”), the U.S. Court of Appeals in Philadelphia determined that the First Amendment did not bar former Rutgers University quarterback Ryan Hart’s New Jersey common law right of publicity claim based on EA’s misappropriation of his likeness.

In In re NCAA Student-Athlete Name & Likeness Licensing Litigation (“Keller”), the U.S. Court of Appeals in San Francisco affirmed a district court’s denial of EA’s motion to strike former Arizona State University quarterback Samuel Keller’s right of publicity class-action complaint as a strategic lawsuit against public participation under California’s anti-SLAPP statute. Keller filed a putative class-action lawsuit on behalf of college athletes, asserting that EA violated their rights of publicity under California Civil Code § 3344 and California common law.

Both appellate courts adopted the “transformative use” test as the proper analytical framework for balancing the former players’ rights of publicity against EA’s right of creative expression. In each case, a two-judge panel majority concluded that EA’s use of realistic player likenesses in accurate settings in NCAA Football video games was not sufficiently transformative to require dismissal of the players’ publicity rights claims.

Dissenting opinions were filed by Circuit Judge Sidney R. Thomas in Keller and Circuit Judge Thomas L. Ambro in Hart. The dissenting judges opined that the creative elements of EA’s NCAA Football were sufficiently transformative to warrant First Amendment protection.

Petition Nos. 13-376 and 13-377.

Attorneys: Paul M. Smith (Jenner & Block LLP) for Electronic Arts Inc.

Companies: Electronic Arts, Inc.

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