On August 17, 2018, the United States District Court for the Northern District of California denied class action certification for the retired National Football League (NFL) players suing Electronic Arts for using their likelihood in their Madden NFL series videogames, and dismissed Electronic Arts’ summary judgement motion in the case Davis v. Electronic Arts, Inc. This decision follows a Ninth Circuit Court of Appeals judgment from 2015 affirming the district court judgment protecting the former professional football players’ publicity rights in the face of a video game company’s First Amendment rights.

In 2010, three retired National Football League (NFL) players filed a class action lawsuit on their own behalf and on behalf of the approximately 6,000 other former NFL players whose likeness was used without permission or licensing by Electronic Arts (EA) in their series of Madden NFL video games. The Madden NFL video game gave users the ability to play as a historic football teams in their virtual game. By giving video game players this ability, the retired NFL players claim that EA went beyond their license with the NFL to recreate teams of the current year, and in doing so, misappropriated likeness and rights of publicity of the former NFL players through marketing and selling of the video game. The former NFL players claimed that EA violated Civil Code § 3344, creating a California’s statutory right of publicity, unfair competition, conversion, trespass to chattels, and unjust enrichment.

In 2012 the District Court refused to grant EA a summary motion to dismiss, holding that the former NFL players had sufficiently established a likelihood of prevailing on their publicity rights claims. EA failed to receive a dismissal of the lawsuit under California’s anti-SLAPP statute and various other defenses such as the public interest defense, Rogers test, or the incidental use defense. EA appealed the District Court’s decision to the Ninth Circuit.

In 2015, the Ninth Circuit ruled on the case, affirming the District Court, holding that “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.” The Ninth Circuit analyzed EA’s motion to dismiss under anti-SLAPP, transformative use, public interest defense, the Rogers Test, and incidental use arguments, finding none of these persuasive and holding for the former NFL players.  “Like NCAA FootballMadden NFL replicates players’ physical characteristics and allows users to manipulate them in the performance of the same activity for which they are known in real life — playing football for an NFL team” The Supreme court denied EA’s certiorari petition to appeal their first amendment protection.

In 2018 the case was remanded to the United States District Court for the Northern District of California and it was here that the District Court again denied EA’s motion to dismiss. However, in a decision that severely weakens the positioning of the former NFL players, the District Court also determined that the former NFL players did not constitute a class action and could not continue their case as such. The court focused on the issue of predominance in Rule 23 analysis of the Federal Rule of Civil Procedure. The court held that since publicity is an inherently individual right, and that the very heart of the case surrounded the ability to identify an individual player to his avatar, that the class could not be certified since this inquiry would be specific to each former player. The court stated, “A reasonable inference is that EA was trying to have it both ways: it wanted its customers to believe they could have genuine reenactments of games with representations of the actual players, while simultaneously hoping to remove enough identifying features that the former players could not claim a license was legally required.”

Performers in the public eye have embraced the decision. In an Amicus brief, the Screen Actors Guild – American Federation of Television and Radio Artists said “Although this case involves athletes, SAG-AFTRA members are potentially affected by its outcome. If allowed unchecked, EA’s infringing use of the athletes’ personas opens the door for others to freely circumvent the statutory and common law right of publicity of any individual in the future. The result can be ruinous to performers’ careers and financial interests.”

This precedent will make it much easier for people in the public eye to file lawsuits and survive summary judgment in cases where their likeness is being used in a video game available for purchase. Although there are limits to this publicity right, primarily that the likeness not be incidental, and that must be central to the video game’s main commercial purpose. Precedent already establishes the outer edges of these boundaries in cases such as Noriega v. Activision/Blizzard, Inc. et al., where a Los Angeles Superior court determined that former Panamanian dictator Manuel Noriega likeness playing a cameo role in the popular video game Black Ops II did not qualify as sufficient to overcome the incidental protection that the First Amendment provides. The court held that Noriega’s appearance in the storyline of the video game did not reach the level of a “main commercial purpose”.

Producers of popular video games and advocates of the first amendment see the potential for far reaching implications that this decision might have, and their concern is not unfounded. Based on the decision of the Ninth Circuit and United States District Court for the Northern District of California, video game producers must either acquire costly licensing agreement or make avatars so unrecognizable that a reasonable person could not identify which player they have chosen. Proponents of First Amendment protections would be right in their fears of a chilling effect on the video game industry, games such as EA’s NCAA Football and Basketball were discontinued in 2014 after a similar lawsuit regarding college athletes settled outside of court after EA lost a motion to dismiss. Since EA discontinued their video game series, no other video game manufacturer has attempted to create another college athlete video game.

Maryam Sonboli is a J.D. candidate, 2020, at NYU School of Law.

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