Everyone knew this was coming. With the expansion of publicity rights that is currently ongoing, and more specifically after the case between former NCAA players and Electronic Arts that effectively killed off college sports video games, it was only a matter of time before former professional players turned their sights on the Madden franchise. Now that a few former NFL players have filed a publicity rights suit against EA, we again will see the First Amendment go up against publicity rights. So far, for free speech advocates and champions of video games being art, it isn't going well.
Some background. In the NCAA case, former athletes successfully argued that the NCAA forcing them to sign away the rights to their likenesses in order to play their respective sports deprived those athletes of the ability to license their likeness to other game-makers. It's an important distinction, because in the case of former NFL players no longer affiliated with the players' union, no such signing away of rights ever occurred. Instead, this is a simple battle directly between Electronic Arts, a game producer, and former players over the rights to use their likeness. In the Madden franchise, for many years the games have included historical teams, such as championship winning or otherwise notable teams, which have included nameless and faceless but otherwise faithfully reproduced historical athletes from those teams. Gamers can play with those teams against other historical teams, creating something of a historical fiction episode of professional sports. Historical fiction, of course, is protected by the first amendment as art. According to a recent ruling by the 9th U.S. Circuit Court of Appeals, however, video games are to be treated differently.
The case against EA was brought by Michael Davis and Vince Ferragamo, both retired NFL players whose likenesses were reproduced (sans name or picture) in Madden's historical teams within the games. EA sought to have the case thrown out with an anti-SLAPP motion, arguing that it would be likely to win on several grounds. Included in those grounds was that the use of historical players' likenesses was transformative, that the publication of their game was in the public interest, and that its use of likenesses was artistically relevant to the game as a whole. The court didn't buy any of those arguments, most of which I understand, although the argument that the use of historical players in the game is transformative is at least an interesting one. But it's on the final argument EA made that the court seemed to go sideways in its logic. As reported by The Hollywood Reporter:
Finally, EA argued that the avatars were merely an incidental use. If the latest case makes its mark as precedent, it might be here. The 9th Circuit weighs the value, significance, purpose and duration of the use of the former players and comes away with a sense that the players' likenesses are worth something. Judge Fisher decides that "the former players’ likenesses have unique value and contribute to the commercial value of Madden NFL" and that "the former players’ likenesses are featured prominently in a manner that is substantially related to the main purpose and subject of Madden NFL."
From the ruling:
EA advances one additional argument in this appeal – its use of former players’ likenesses is protected under the First Amendment as “incidental use.” We disagree. We hold EA’s use of the former players’ likenesses is not incidental, because it is central to EA’s main commercial purpose – to create a realistic virtual simulation of football games involving current and former NFL teams.
Except that this seems to be entirely too simplistic an approach by the court and doesn't treat the game as having artistic value. Other genres of art don't typically suffer under this kind of distinction. Historical fiction seems like the logical place to point, in which public figures of notoriety are re-imagined in fictional accounts. Why should that use be different than historical players being used to play football against teams they never played against? What makes historical fiction okay, but historical games not? In its ruling, the court never really answers this question, instead going back to the NCAA case over and over again and asserting that the questions raised by EA in this case have already been decided.
As a result, the 9th Circuit affirms the lower court's decision to deny EA's motion to strike. The opinion not only reiterates what the same appellate circuit said last year in a similar case involving college athletes — something that could be disconcerting to TV broadcasters who are now facing legal heat — but also underscores some of the ways that publicity rights can gain an edge over First Amendment rights, best illustrated up until now by No Doubt singer Gwen Stefani's victory over a game that used her avatar.
But then why should this case be different than the one brought by Manuel Noriega, where his likeness was used in Activision's Call of Duty
game without his permission. In that case, in a different jurisdiction, the court ruled that the First Amendment outweighed any publicity rights Noriega may have had. If video games are art, and they most certainly are, than former NFL players objecting to the historical fiction that comes about from EA including historical teams in its games ought be outweighed as well on First Amendment grounds. The state laws are different, but the protection of the First Amendment is not. And keep in mind, the game only includes basic info about these players that are historically accurate for the time of the team represented (height, weight, age of the player at the time they were on the team). No names or pictures were included. And the court was well aware of the protection video games are supposed to have as artistic endeavors.
The plaintiffs concede that their suit arises from an act by EA in furtherance of its right of free speech under the First Amendment. Indeed, “[v]ideo games are entitled to the full protections of the First Amendment, because ‘[l]ike the protected books, plays, and movies that preceded them, video games communicate ideas – and even social messages.’” Keller, 724 F.3d at 1270-71
The district court denied EA’s motion, however, concluding that the plaintiffs established a reasonable probability they will prevail on their claims. “‘Reasonable probability’ . . . requires only a ‘minimum level of legal sufficiency and triability.’”
And so the court refused to dismiss the case, which will now go trial. In that trial, we will learn whether California's publicity rights law will continue to value the desires of control of public figures over their own history or matters of art.