The 9th Circuit has done something crazy (again, many would say). In Re NCAA Student-Athlete Name and Likeness Licensing Litigation (31 July 2013), the court refused to strike a claim by Robert Keller, a former college-level American football player, that Electronic Arts Inc (EA) violated his right of publicity by producing a video game that replicated the likenesses of actual players (including Keller). The names and jersey numbers of the players were not provided, but could be uploaded and assigned to make everything seem as real as possible.
The majority of the 9th Circuit rejected EA's argument that it had, through the addition of creative elements, significantly transformed a mere celebrity likeness or imitation and made it an independent expressive work, worthy of First Amendment protection. The game in question represented Keller as 'what he was: the starting quarterback for Arizona State', depicting him doing exactly what he did as a celebrity (if a minor one). The majority also thought that Keller had a viable claim that EA had misappropriated, 'without permission and without providing compensation, his talent and years of hard work on the football field' and that he was not advancing the more difficult argument that EA was intentionally misleading consumers into thinking Keller had endorsed the video game (which would be more difficult to establish). EA's use of player information was not for the purposes of publishing or reporting factual data, which would have provided a defence to Keller's claim. Thomas J, dissenting, found that there had been transformative use of Keller's image for the purposes of a creative work, and that the balance therefore tipped away from his publicity rights in favour of EA's rights of free expression. Justice Thomas also thought that an individual college athlete's rights of publicity are 'extraordinarily circumscribed and, in practical reality, non-existent' because the jocks in question can't even license their names and likenesses under the rules of the National Collegiate Athletic Association.
The ruling has been roundly criticised on the grounds that it could conceivably be used to block any realistic representation of an even remotely famous person in an artistic work. As Justice Thomas pointed out, the 'logical consequence' of the majority's reasoning is that 'all realistic depictions of actual persons, no matter how incidental, are protected by a state law right of publicity regardless of the creative context. This logic jeopardizes the creative use of historic figures in motion pictures, books, and sound recordings.' Think of Helen Mirren in The Queen, Jesse Eisenberg and Justin Timberlake in The Social Network, Meryl Streep in The Iron Lady...
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