Court Rejects EA's First Amendment Defense

On Tuesday, Mike mentioned the federal district court's denial of the NCAA's motion to dismiss in the O'Bannon case. As part of that ruling, Keller v. EA, filed in the same court, was consolidated with the O'Bannon case. In a separate ruling, the court held that the First Amendment does not trump the right of publicity under California law in the context of video game use of players' identities.

First, the court correctly explained that EA's use does not meet the transformative use test:

Here, EA's depiction of Plaintiff in "NCAA Football" is not sufficiently transformative to bar his California right of publicity claims as a matter of law. In the game, the quarterback for Arizona State University shares many of Plaintiff's characteristics. For example, the virtual player wears the same jersey number, is the same height and weight and hails from the same state....EA does not depict Plaintiff in a different form; he is represented as what he was: the starting quarterback for Arizona State University. Further, unlike in Kirby, the game's setting is identical to where the public found Plaintiff during his collegiate career: on the football field.

The court also properly rejected EA's assertion that use of players' identities in video games is a matter of public interest:

The game does not merely report or publish Plaintiff's statistics and abilities. On the contrary, EA enables the consumer to assume the identity of various student athletes and compete in simulated college football matches. EA is correct that products created for entertainment deserve constitutional protection. (citation omitted) But it does not follow that these protections are absolute and always trump the right of publicity.
EA cites cases in which courts held that the public interest exception protected online fantasy baseball and football games. Although these games are more analogous to "NCAA Football," the cases are nonetheless distinguishable. In C.B.C. Distribution and Marketing v. Major League Baseball Advanced Media, a declaratory judgment action, the plaintiff sold "fantasy baseball products" that included the names and statistics of major league baseball players.... C.B.C. Distribution is inapplicable here. Success in "NCAA Football" does not depend on updated reports of the real-life players' progress during the college football season. Further, EA's game provides more than just the players' names and statistics; it offers a depiction of the student athletes' physical characteristics and, as noted, enables consumers to control the virtual players on a simulated football field. EA's use of Plaintiff's likeness goes far beyond what the court considered in C.B.C. Distribution.