Free speech vs. athletes’ right of publicity: The Supreme Court’s Madden NFL decision

On March 21, 2016, the United States Supreme Court, without opinion, denied Electronic Arts, Inc.’s (“EA”) petition for certiorari (i.e. a petition to have the Supreme Court hear the case) in Davis v. Electronic Arts, Inc.¹ In doing so, they declined to provide any further guidance on how to balance the First Amendment right of free speech principles against an individuals’ state-law rights of publicity (which prevent the unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona).

The Davis case involved a California State right of publicity claim asserted by former NFL player Michael Davis, relating to EA’s unauthorized use of his name and persona in its popular Madden NFL videogame series. The California federal district court ruled that EA could not establish, as a matter of law, that its activity was protected by the First Amendment (right of freedom of speech), and that consequently Davis could pursue a right of publicity claim.

In the U.S., there is no federally granted right of publicity, and no universal standard for analyzing right of publicity claims brought under state statutory or common law. As a result, courts across U.S. jurisdictions have developed various tests for evaluating right of publicity claims when faced with free speech concerns. This approach was affirmed in the earlier decision by the Ninth Circuit Court of Appeals in Keller v. Electronic Arts, Inc.^{,2 which involved similar right of publicity claims directed to EA’s ‘NCAA Football’ videogame series.}

In Davis, EA argued that its use of player names, images, and likenesses in the virtual-reality videogame context was shielded from right of publicity liability under multiple, alternative tests and theories that have emerged over time. Specifically, EA argued First Amendment protection under:

1. The “transformative use” test, balances the First Amendment right and the right of publicity based on whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation;
2. The “public interest” exception, exempts the publication of matters in the public interest from right of publicity liability;
3. The “Rogers” test, is grounded in trademark law principles and focuses on the “artistic relevance” of the defendant’s use of the plaintiff’s name, image or likeness in the context of the challenged work; and
4. The “incidental use” test, which, under California law, asks a series of questions aimed at evaluating the level of connection between defendant’s complained-of use and overall work as a whole.³