Inclusion of the likeness and biographical data of college athletes in a video game is potentially a violation of those athletes’ publicity rights under California law. Keller v. Electronic Arts Inc., 2010 WL 530108, No. C 09-1967 CW (N.D. Cal. Feb. 8, 2010). A California court recently allowed California right of publicity claims to proceed against Electronic Arts Inc. (“EAI”), the manufacturer of the NCAA Football and Basketball series of video games. The court also allowed various other common law claims, including civil conspiracy and unjust enrichment, against EAI, the National Collegiate Athletics Association (“NCAA”), and the Collegiate Licensing Company (“CLC”) to proceed.

Background
Sam Keller, a former starting quarterback for the Arizona State University and University of Nebraska football teams, sued EAI, the NCAA, and the CLC claiming his image was being used in EAI’s video games without his permission under Cal. Civ. Code § 3344(a) and in violation of the NCAA rules. He brought the suit as a class action on behalf of all similarly situated former college athletes.

The NCAA rules prohibit college athletes from earning money for playing college sports. Further, game manufacturers, like EAI, may not use the name and likeness of real college players. Keller alleged that EAI skirts this rule by creating players in its games that visually resemble actual student athletes and giving players of the game the ability to rename these players in the game and upload additional player information. Keller claimed that, for a majority of Division I football or basketball players in the NCAA, there is a corresponding player in an EAI game with the same jersey number, statistics, height, weight, build and home state, and, in some cases, even skin tone, hair color, and hair style.

Electronic Arts Inc.
With respect to the publicity right claim, EAI argued that its use of Keller’s likeness was protected by the First Amendment and California’s public affairs exemption. Use of an individual’s likeness is protected under the First Amendment if the use contains significant transformative elements such that the value of the work comes from the new expression rather than the fame or recognition of the underlying individual. Hilton v. Hallmark Cards, 580 F.3d 874, 889 (9th Cir. 2009). The court, however, found that there was no attempt at transmogrification with the video game version of the plaintiff. The court rejected EAI’s defense on the ground that EAI depicted Keller in the same form (the starting quarterback for Arizona State University) and in the same setting (playing college football). As a result, the court did not find EAI’s depiction of Keller to be sufficiently transformative to bar his California right of publicity claims as a matter of law.

EAI also claimed the public interest exception under the First Amendment. This exception protects the transmission of information and facts about celebrities and public figures that is in the public interest. The court rejected this argument, finding the EAI game “does not merely report or publish plaintiff's statistics and abilities,” but “enables the consumer to assume the identity of various student athletes and compete in simulated college football matches.” Because EAI’s game provided more than just facts and statistics about actual players, its use was not protected by the public interest exception.

EAI also tried to argue that the use of Keller’s likeness in its game was permissible under California’s public affairs exemption. This statutory defense exempts liability for the “use of a name … or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign.” Cal. Civ. Code § 3344(d). While the court acknowledged that college athletics are public affairs, it narrowly interpreted the exemption to apply only to the same type of uses that would fall within the scope of the First Amendment’s public interest exception. Because it found that EAI’s “use of Plaintiff's image and likeness extended beyond reporting information about him,” the court rejected EAI’s defense and allowed Keller’s publicity right claim to proceed.

The court also dismissed EAI’s anti-SLAPP motion because Keller had shown a likelihood of success on the merits of his claim.

Conclusion
The February 8, 2010 ruling means that EAI could be found liable for violating college players’ rights of publicity through its use of their likenesses and characteristics in its NCAA Football video game. While this would be a huge financial blow to EAI, the ultimate importance of this case lies in the court’s analysis of the publicity right claims and the guidance it provides regarding how closely a video game avatar can be modeled on a real life individual before violating that individual’s publicity rights.

For more information about Arent Fox’s expertise in the area of publicity rights, please contact:

Anthony V. Lupo
lupo.anthony@arentfox.com
202.857.6353

Halle Markus
markus.halle@arentfox.com
202.857.6113