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In a pair of long-awaited decisions that are sure to create confusion and inspire much more litigation, the Ninth Circuit finally decided two football videogame likeness disputes with two separate and seemingly-conflicting opinions.
Jim Brown dominated the NFL for the Cleveland Browns in the 1960s. His likeness has appeared in many recent editions of the Madden NFL series as a historical, Hall of Fame, or "All-Madden" player, though Electronic Arts, the publisher of Madden, has taken some steps (such as changing the jersey number) to differentiate the otherwise similar avatar.
Sam Keller, more recently, played quarterback for the NCAA Division-I Arizona State Sun Devils. His likeness, which, according to the court, mimicked his height, weight, facial features, hair color and style, home state, playing style, school year, skin tone, throwing arm, uniform number and even his visor preference, appears in recent versions of Electronic Arts' NCAA Football.
Both were miffed at their likeness being used without compensation. Keller's case survives, while Brown's case doesn't. What gives?
Brown brought mixed state and federal claims, including a Lanham Act § 43 claim, which alleged that Brown's likeness was used and that it was likely to cause consumer confusion regarding association with, or sponsorship of, the game. The district court, applying the Rogers test, dismissed the federal claim and declined to exercise supplemental jurisdiction over the state claims. Today, the Ninth Circuit affirmed.
The Rogers test states that § 43(a) will not be applied to expressive works "unless the [use of the identifying material] has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the [use of identifying material] explicitly misleads as to the source or the content of the work."
Video games, per the Supreme Court, are an artistic medium subject to First Amendment protections. That leaves the question of whether the use of Brown's likeness explicitly misleads consumers as to the source or content of the work.
Not so, says the Ninth Circuit, as there is no misleading as to the source of the game. EA never explicitly used Brown's likeness to suggest endorsement, such as in promotional materials. In fact, their attempts to disguise his identity argue against such a proposition.
The news was better for Keller. His claims, in contrast to Brown's, were brought under California's right of publicity and California common law. And while the First Amendment saved EA from Brown's claims under the Rogers test, it was not nearly as helpful against Keller's claims and the "transformative use" test devised by the California Supreme Court. That test is best illustrated by two examples cited by the Ninth Circuit in its opinion: the Three Stooges case and the DC Comics case.
In the original transformative use case, an "artist" created lithographs and t-shirts bearing the likeness of the Stooges. Unfortunately for him, artist's "undeniable skill [was] manifestly subordinated to the overall goal of creating literal, conventional depictions of The Three Stooges so as to exploit their fame."
In the DC Comics case, a comic book that created two villainous "half-worm, half-human" characters, Johnny and Edgar Autumn, based on real-life rockers Johnny and Edgar Winter, was sufficiently transformative.
Here, due to the hyper-realism of EA's depictions, the case fell squarely into non-transformative territory.
The two seemingly-conflicting holdings were simply a matter of state versus federal law. The court noted, in a footnote, that had Brown's state claims been evaluated by the court, that the outcome likely would have been different (citing today's Keller opinion to emphasize the point).
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