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EA Asks 9th for SCOTUS Time Out in Football Video Game Cases

By William Peacock, Esq. on August 21, 2013 | Last updated on March 21, 2019

Looks like Electronic Arts is throwing out the red challenge flag. Last month, in a pair of mildly confusing matchups, a panel of the Ninth Circuit tossed NFL Hall-of-Famer Jim Brown's Lanham Act claim, finding that EA's First Amendment rights trumped his right of publicity. In a simultaneously released opinion, they held that former college QB Dustin Keller's right of publicity trumped EA's rights.

The rulings were a bit incongruous, but relied on two different tests, the Rogers test and the "transformative use" test, as well as the difference between state and federal law. In a factually identical case to Keller, earlier this year, the Third Circuit also held that a college player's rights trumped EA's creative expression. Now, EA is seeking a hold on the Ninth Circuit's remand to the district court while it appeals both college cases to the Supreme Court, reports USA Today.

Rogers Test

In all three cases, EA urged the court to apply the Rogers test when balancing EA's right to artistic expression against the athletes' right of publicity. The Rogers test, devised by the Second Circuit to deal with celebrity endorsements under the Lanham Act, asks whether the usage of one's likeness is wholly unrelated to the underlying work and whether the use is for purposes of commercial advertisement.

For example, were a company to take a college quarterback's likeness and to stamp it onto a line of fat-reducing grilling machines, without the player's consent, that would likely not qualify as "artistic expression" under the Rogers test and the Lanham Act.

In the Brown case, the court held that the usage of Brown's likeness was not for endorsement purposes and was sufficiently related to the underlying artistic work (yes, video games are artistic works). However, that ruling was limited to Brown's Lanham Act claim, and not his state law right of publicity claim, which still survives, albeit now in state court.

In the Keller case, the court, dealing with state law claims, refused to apply the Rogers test. Instead, they went with the much less lenient (for the artist) transformative use test.

Transformative Use Test

This test test, which is based in copyright law, has its right of publicity origins in a dispute over Three Stooges t-shirts. The test asks whether the use of a person's likeness has been sufficiently transformed by artistic or expressive change, or in the words of the California Supreme Court, whether "the celebrity likeness is one of the 'raw materials' from which an original work is synthesized, or whether the depiction of the celebrity is the very sum and substance of the work in question."

This is where EA's NCAA Football simulation-style video games fail. The series relied upon its realism. The more it succeeded, the less "transformation" occurred, and the less likely the company was to prevail under this test.

Square Pegs

Neither test has its origins in the right of publicity, and neither fits perfectly. The Rogers test requires blatant false endorsement before a celebrity's rights are implicated, while the transformative use test requires near-parody. Where is the line between First Amendment artistic expression and the right to profit off of one's own likeness? EA hopes to find out with its petition to the Supreme Court.

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