Latest decision in the "Madden NFL" rights of publicity litigation

On January 6, 2015, the Ninth Circuit decided that Electronic Arts Inc.’s (“EA”) unauthorised use of former NFL players’ likeness as avatars in the Madden NFL video game series does not qualify for First Amendment¹ protection. Davis v. Elec. Arts Inc,.²  It thus affirmed the lower court’s denial of EA’s motion to strike the plaintiffs’ California right of publicity action as a strategic lawsuit against public participation (SLAPP),³ under California’s anti-SLAPP statute.

This outcome is consistent with recent decisions that have also rejected EA’s attempt to overcome athletes’ right of publicity claims related to its simulated virtual reality sports video games on First Amendment grounds. See Hart v. Electronic Arts, Inc⁴>; Keller v. Elec. Arts Inc⁵. The Davis ruling is significant in its own right, however, as it addresses EA’s “incidental use” defense not at issue in Keller or Hart.⁶

Generally speaking, California’s anti-SLAPP statute allows for early dismissal of claims that threaten free expression when allegations arise from acts performed in furtherance of the defendant’s right of petition or free speech in connection with a public issue: see Cal. Civ. Proc. Code § 425.16(b)(1).⁷ To defeat an anti-SLAPP motion to strike, California’s statute requires that the plaintiff establish a probability that it will prevail on its claim. In Davis, the district court concluded, and the Ninth Circuit agreed, that plaintiffs established a reasonable probability of success on their right of publicity claim, rejecting EA’s assertion that it was barred by several different free speech-based defences.

Davis reinforces the Ninth Circuit’s 2013 Keller decision. Keller involved similar right of publicity claims brought by former college athletes related to the avatars appearing in EA’s NCAA Football video game series. In Keller, the Ninth Circuit “held EA’s unauthorized use of a former college football player’s likeness was not, as a matter of law, protected by the First Amendment.”⁸ In Davis, the Ninth Circuit rejected the majority of EA’s First Amendment defences because Keller had similarly disregarded “several of the First Amendment defences EA raises here on materially indistinguishable grounds.” During the appeal, EA asserted one additional defence, however, that it did not argue in Keller – that its use of former players’ likenesses is protected as an “incidental use” under the First Amendment.