Ninth Circuit Fumbles The Ball In Videogame Likeness Cases

Creating a new rule that gives videogames much more limited protection than other expressive works, the Ninth Circuit has ruled that realistically depicting college athletes in videogames showing them doing what they became famous for doing—in this case, playing football—is not sufficiently transformative to avoid a state law right of publicity claim. In In re NCAA Student-Athlete Name & Likeness Licensing Litigation (Keller), 2013 WL 3928293 (9th Cir. July 31, 2013), the court held that Keller, a former college athlete prohibited by NCAA rules from commercializing his name and likeness rights, could pursue a right of publicity claim based on the use of his likeness in a football videogame—a work admittedly protected by the First Amendment—despite the game producer's assertion of First Amendment defenses. This decision, following on the heels of the May 21, 2013 opinion in Hart v. Electronic Arts, Inc., 717 F.3d 141 (3rd Cir. 2013), which was heavily relied on by the Keller decision, as well as its re-interpretation of precedent in the right of publicity area that had up-to-now been considered well-established, are sure to have unintended consequences extending to branded entertainment and other hybrid contexts where brand messages and creative expression combine.

Samuel Keller ("Keller"), a former college football quarterback for Arizona State and Nebraska, sued Electronic Arts ("EA") for right of publicity violations arising from the use of his likeness in its NCAA Football videogame series. NCAA Football is a highly realistic football videogame that tries to portray each college football team as accurately as possible. NCAA Football does not automatically include players' names on their jerseys, but players may, using third-party sources, include names on the back of the players' jerseys. Apart from that, the game matches everything it can about the athletes portrayed—from their physiques down to any "highly identifiable playing behaviors." It similarly attempts to recreate the stadiums in which college games are played, including the coaches, cheerleaders, and even fans. Keller, at *1.

Keller complained that the 2005 and 2008 versions of NCAA Football contained an avatar of him playing quarterback for Arizona State and Nebraska, respectively. Keller, at **1-2. EA filed an anti-SLAPP special motion to strike, which the district court denied. The Ninth Circuit affirmed in a ruling that gives videogames much less First Amendment protection...