Court Allows Players' Case Against Madden Video Game to Proceed
The summer did not end well for Electronic Arts (EA), as a district court rejected its summary judgment motion in Davis v. Electronic Arts, allowing the right of publicity claims under California's common law to proceed. The claims arise out of the alleged use of real NFL players' identities as avatars in the Madden NFL video game series. The video games included uses of historical teams, which included avatars based on real players. These avatars had the same statistics as the plaintiffs, and similar physical characteristics, such as skin tone & throwing arms. The game did not, however, use the players' names or likenesses.
The lawsuit has been pending for years now, and the Ninth Circuit earlier rejected a First Amendment defense to the right of publicity claims. (I and other IP and constitutional law professors called for this decision to be reheard en banc, and then filed a brief supporting review and reversal in the Supreme Court.)
The case, now back in the district court, has turned to an argument about whether the players' likenesses or identities are used in the game. The district court had earlier dismissed the claim arising out of California's statutory right of publicity, Cal. Civ. Code Section 3344, because that is limited to uses of a person's "name, voice, signature, photograph, or likeness." The court held that the players' likenesses were not used in the game, and therefore no Section 3344 claim could proceed.
The court, however, allowed the claim to proceed under California's common law, pointing to the Ninth Circuit's decision in White v. Samsung Elec., which interpreted the common law more broadly than the statutory right. White allowed a claim on the basis of a use of an individual's persona. In White, the court held actionable the use of a robot with a blond wig that evoked Vanna White, but did not use her likeness, nor look like her. In light of this, the court concluded that the players' common law claims could stand if the avatars evoked or "identified" particular individuals.
Given this broad standard for liability, it is no surprise that the court rejected EA's call for summary judgment on the common law right of publicity claim. EA presented survey evidence that less than 2 % of consumers are likely to associate specific avatars with any particular player (even when shown screen shots). The court nevertheless concluded there was a "triable issue of fact as to identifiability." The court pointed to the use of the historical team rosters, the shared "physical and perofrmance characteristics" with the real players, and the ability to edit the avatars' names to put in the actual name of the corresponding real players as enough evidence to go to a fact-finder.
The court also rejected a renewed First Amendment defense. It held that the conclusion by the Ninth Circuit that the use was not transformative remained in place, even after it was proved that no actual likenesses were used in the game, and users of the game were not likely to conjure up the identities of the plaintiffs. The court failed to reconsider this First Amendment analysis despite the holding in De Havilland v. FX Networks which EA had raised in its briefs.
The court also renewed its conclusion that copyright preemption was no defense to the right of publicity claim.
THE RIGHT OF PUBLICITY: Privacy Reimagined for a Public World
This book from Harvard University Press by Professor Jennifer Rothman traces the history and development of the right of publicity and its current collision course with individual liberty, free speech and copyright law.