In re: NCAA Licensing Litig., No. 10-15387 (9th Cir. 2013)Annotate this Case
Former starting quarterback for Arizona State University, Samuel Keller, filed a putative class action suit against EA, alleging that EA violated his right of publicity under California Civil Code 3344 and California common law by using Keller's likeness as part of the "NCAA Football" video game series. EA moved to strike the complaint as a strategic lawsuit against public participation (SLAPP) under California's anti-SLAPP statute, Cal. Civ. Proc. Code 425.16. The court concluded that EA could not prevail as a matter of law based on the transformative use defense where EA's use did not qualify for First Amendment protection because it literally recreated Keller in the very setting in which he had achieved renown. The court also concluded that, although there was some overlap between the transformative use test and the Rogers v. Grimaldi test, the Rogers test should not be imported wholesale to the right-of-publicity claims. Finally, the court concluded that state law defenses for reporting of information did not protect EA's use. Accordingly, the court affirmed the district court's denial of the motion to strike the complaint.
Court Description: Anti-SLAPP/Video Games. The panel affirmed the district court’s denial of a motion to strike a complaint as a strategic lawsuit against public participation under California’s anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16, and held that video game developer Electronic Arts had no First Amendment defense against the right-of-publicity claims of former college football player, Samuel Keller. Keller filed a putative class-action complaint asserting that Electronic Arts (EA) violated his right of publicity under California Civil Code § 3344 and California common law by using his likeness as part of the NCAA Football video series. The panel held that under the “transformative use” test developed by the California Supreme Court, EA’s use did not qualify for First Amendment protection as a matter of law because it literally recreated Keller in the very setting in which he had achieved renown. The panel rejected EA’s suggestion to import the balancing test set forth by the Second Circuit in Rogers v. Grimaldi, 875 F.2d 994 (2nd Cir. 1989), which had been created to evaluate Lanham Act claims, into the right-of-publicity arena. The panel further held that the state-law defenses for the reporting of factual information did not protect EA’s use. Dissenting, Judge Thomas stated that because the creative and transformative elements of EA’s NCAA Football video game series predominated over the commercial use of the athletes’ likenesses, the First Amendment protects EA from liability.