Popular video game manufacturer Electronic Arts (EA) recently settled claims brought against the company by former college athletes over EA's use of athletes' personas in its major game series, NCAA Football and NCAA Basketball. The class action lawsuit, filed in the Ninth Circuit by Samuel Keller, former starting quarterback for Arizona State University and the University of Nebraska, alleged that EA violated his right of publicity under California law by using his likeness as part of EA's NCAA football game series without permission or compensation. The settlement leaves the NCAA, another plaintiff in the case, to litigate the dispute. Although the terms of the settlements are confidential until presented to the court for preliminary approval, reports list the settlement award at more than $40 million.
The NCAA games in question allow players to control avatars representing college football or basketball players in simulated games. EA attempts to replicate the teams as accurately as possible, by incorporating in each avatar, details of the real players, such as their height, weight, build, skin tone, hair style and color, facial features, and in some cases, the players' home states and jersey numbers. Although video games are entitled to full protection under the First Amendment (similar to books, plays and movies), the Ninth Circuit court found that the games did not sufficientlytransform the players' identities to escape a right of publicity claim and effectively assert First Amendment protection.
The court's decision highlighted a potential upswing for athletes and entertainers who seek to be compensated for the use of their personas in protected works, which may have been the motivation needed for the parties to settle out of court. Despite the Keller case settlement, EA is currently facing another right of publicity challenge in the Third Circuit brought by former college quarterback Ryan Hart under New Jersey law. This past May, the Third Circuit court determined that EA's use of Hart's likeness in the NCAA game series was not sufficiently transformative to overcome Hart's right of publicity claim. The court looked to the same "transformative use test" that was developed in California and applied in the Keller case, noting that the New Jersey and California right of publicity laws are "strikingly similar...and protect similar interests."
Notably, EA did prevail in a third case also heard by the Ninth Circuit, albeit on different grounds. The case involved the use of an athlete's likeness in another popular EA sports series, Madden NFL. The athlete, National Football League Hall of Famer Jim Brown, alleged that EA's use of his likeness without authorization was likely to cause consumer confusion over his affiliation or endorsement in violation of the Lanham Act. The court decided that Jim Brown's likeness was "artistically relevant" to the games and that there were no facts to support the claim that EA explicitly misled consumers as to Brown's involvement. In balancing EA's First Amendment rights against the likelihood of consumer confusion, the court held that "in this case, the public interest in free expression outweighs the public interest in avoiding consumer confusion." It is important to note that the Brown court was tasked to address a federal Lanham Act claim rather than a state right of publicity claim as were alleged in the Keller or Hart cases. The court emphasized this distinction in a footnote where it cited to Keller, saying "were the state causes of action before us, our analysis may be different and a different outcome may obtain."
With the exception of the Brown case, the Ninth and Third Circuit decisions likely open the door for ex-college players to be compensated for the use of their images. If upheld on appeal, EA and other video game publishers may be forced to obtain releases from players or other real individuals depicted in their games. The court in the Keller case noted that although NCAA rules may generally prohibit athletes from benefiting economically from any success on the field, athletes are not necessarily bound by these rules, for example, after they have graduated from college. EA has publicly stated that it plans to get out of the game and retire its 2014 college football video game.
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