Ninth Circuit Assesses Use Of Player Likenesses In Video Games

On Wednesday, July 31, 2013, the Ninth Circuit issued two opinions assessing the parameters of use of individual player likenesses in video games in two highly watched cases:

In Brown v. Electronic Arts, Inc. , No. 09-56675, 2013 U.S. App. LEXIS 15647 (9th Cir. July 31, 2013), the Ninth Circuit panel unanimously affirmed the district court's determination that Jim Brown could not assert a Lanham Act false endorsement claim based on the use of his "likeness" in the Madden NFL line of video games because this use was protected by the First Amendment. In In Re NCAA Student-Athlete Name & Likeness Litigation, No. 10-15387, 2013 U.S. App. LEXIS 15649 (9th Cir. Cal. July 31, 2013), the same panel affirmed, with one dissent, the district court's determination that defendant Electronic Arts ("EA") does not have a First Amendment defense against the state law right of publicity claims asserted by plaintiff collegiate athletes. Brown v. Electronic Arts, Inc.

Various versions of the Madden NFL video game include "historical" or "all-time" teams for which, although no player names were used, specific players were nonetheless recognizable due to the accurate presentation of their other attributes. In Brown, hall of fame NFL running back James Brown alleged that EA violated § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), by creating a false impression of endorsement through this use of his likeness in the video games.

The court considered whether such a claim could survive a First Amendment challenge, assessed by the test set forth in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989). The Rogers test is designed to "balance the public's First Amendment interest in free expression against the public's interest in being free of confusion about affiliation and endorsement." Under Rogers, Section 43(a) does not apply to expressive works: (1) "unless the [mark or likeness] has no artistic relevance to the underlying work whatsoever;" or (2) "if it has some artistic relevance, unless the [use] explicitly misleads as to the source or the content of the work." Id. at 999. The Ninth Circuit had previously adopted the Rogers test in Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002), and applied it specifically in the video game context in E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095 (9th Cir. 2008).

The panel determined that Brown could not maintain his Lanham Act claim. Under controlling Supreme Court precedent, video games...