EA’s primarily posited two arguments that the court ultimately found dissuasive. EA relied on the in terms of its basic right to create and distribute the video game. In response to Keller’s assertion of common law and civil code protection against the tort of appropriation of likeness – also known as the right of publicity – EA argued that the video game met the transformative use test, which allows the First Amendment to supersede publicity rights. Second, EA leaned on (“Strategic Lawsuits Against Public Participation”), claiming that Keller’s suit qualified as an attempt to punish EA for exercising its political rights. The court rejected these arguments.

Right-of-Publicity vs. First Amendment
California’s right-of-publicity is based in common law on , which supports a claim with these four conditions: use of the plaintiff’s identity, appropriation of that name or likeness to the defendant’s advantage, lack of consent and resulting injury. California validates this and adds that, in addition to  “all the elements of the common law cause of action,” there must also be a "knowing use by the defendant as well as a direct connection between the alleged use and the commercial purpose.”

EA argued the transformative allowance, which allows the First Amendment to trump publicity rights if sufficient transformation has occurred between the original inspiration and the new work. EA argued that it had added significant creative change so that the players’ likenesses within the game were transformed to surpass existing as a simple imitation. In arguing this, they relied not on the transformation of the likeness per se, but in the concept of the game as a whole as sufficiently transformative. One judge dissented from the majority, agreeing with the "game-as-a-whole" transformation argument. The remainder, however, didn’t agree.

The majority argued that there was simply too much direct copying of Keller’s likeness to meet the transformation threshold. Indeed, there were many direct comparisons.

“In the 2005 edition of the game, the virtual starting quarterback for Arizona State wears number 9, as did Keller, and has the same height, weight, skin tone, hair color, hair style, handedness, home state, play style (pocket passer), visor preference, facial features, and school year as Keller.” (p. 7-8)

As was emphasized by Judge Jay Bybee, upholding the lower court decision,

“Keller is represented as ‘what he was: the starting quarterback for Arizona State’ and Nebraska, and ‘the game’s setting is identical to where the public found [Keller] during his collegiate career: on the football field’.” (p. 16)

Outside of the transformation argument, EA also posed the related argument that because the game maker included numbers but not the last names on the in-game jerseys, the likeness threshold was not met. This argument received little traction. As the verdict found - and as one succinctly pointed out - EA “intentionally designs its sports games to allow gamers to circumvent this formality, providing a means to easily upload entire rosters of actual player names, after which player jerseys contain both the player’s number and name. Although EA could easily block this feature (as they do for profanity), they choose not to.”

The Anti-SLAPP Statute
California anti-SLAPP law is best summarized as an attempt to prevent suits that “masquerade as ordinary lawsuits but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so” ().

By siding with Keller’s publicity rights, the court inherently rejected the idea that Keller’s suit was a frivolous attempt to trample EA’s constitutional rights.

Canadian Application
Though there are many in Canadian appropriation of personality jurisprudence, our domestic requirements would have been met handily in Keller v EA.

The Ontario Court of Appeal’s 1997 decision Krouse v Chrysler Canada Ltd. outlined that the two requirements to satisfy the tort are identity exploitation for commercial purposes, and exploitation that clearly captures the personality of the plaintiff. The test for commercial purpose was solidified in 1996 in , which outlined the need for the likeness to be predominantly connected with the sale of the consumer merchandise. One example given in the verdict directly correlates to Keller v EA,

As a result, Elvis Presley posters, pewter replicas of a statue of Elvis Presley, a “Howard Hughes” game which included Hughes’ name and other biographical information, and a board game utilizing the names and biographies of famous golfers, have all been found to infringe the right of publicity: see Presley, supra, p. 1358. All were found to be commercial products which were not vehicles through which ideas and opinions are regularly disseminated. (para 21) (Emphasis author's own.)

Thus, there is not much doubt that in a Canadian context, the case would have been similarly decided.

Analysis and Opinion
There are two particularly unsettling components of this case: that it took the courts so long to come to this fair decision, and that even with it, there was still a dissenting judge who supported the transformation argument.

This decision is fair based on the reasons argued, but it is also intuitively fair in my opinion because of the lack of options afforded to the individual players. NCAA bylaws prevent college athletes from receiving compensation for their skill or status. This means they can’t sign endorsement deals or barter away their likenesses, even if they wanted to do so. Yet, at the same time, the NCAA is signing exclusive rights deals with video game makers like EA in order to create these profitable NCAA league video game franchises. The likeness appropriation is clear, as is the commercial motivation. Quite simply, the system was designed to exploit the players. Keller and the co-plaintiffs made the right decision in suing.

Finally, arguing that the game was sufficiently transformative in its whole so as to override the individual identity infringement is a difficult pill to swallow. Yes, it is a video game. Yes, there are ways to alter and change certain characteristics of the game. Yes, there are no last names on the jersey. Yes, there are many potential arguments that amplify the differences between IRL (in-real-life) Keller and video game Keller. But at the end of the day, they are all attempts to create legal loopholes to avoid the ultimate truth: a company does not have the right to profit from a person’s identity without permission. The transformation allowance is meant to be more substantive and rights-protective in its application. It is gratifying to see the court reject EA’s attempt to use the First Amendment’s transformation allowance to override personality rights, because to do so would have been an insult to both crucial legal concepts.


Denise Brunsdon is an IPilogue Editor and a JD/MBA Candidate at Western University.

The post EA Loses Battle to Put Athlete’s Likeness in Video Game appeared first on IPOsgoode.

A recent out of California dismissed the case of NFL Hall of Fame player Jim Brown against video games giant Electronic Arts (EA), producers of the popular Madden football series. Mr. Brown alleged that EA misappropriated his "name, identity and likeness" by using a representation of him on some teams in the game. The dismissal was granted based on a First Amendment defence that protects "expressive works" such as video games.

Many of us from Generation Y grew up playing sports video games where Michael Jordan, Barry Bonds or Wayne Gretzky were not included because they did not agree for their likeness to be used. Instead, video game developers simply made replica players on the same team but with the players' names excluded. This is what is done in Madden for "historical" players who do not have a licence with EA for their likeness.  While this has not been an issue in the past, Mr. Brown felt that his replica player, who has his approximate physical attributes but not his name or correct jersey number, was a misappropriation of his likeness.

Specifically, Mr. Brown put forth an unfair competition claim under , under a theory of false endorsement. In general, this claim alleges the misuse of a trademark based on some distinguishing characteristic which is likely to confuse customers about the plaintiff's sponsorship of the product. The First Amendment provides a defence against Lanham Act claims asserted against the creator of expressive works. Based on the test from , the following two part test must be met for the claim to succeed:

1. The defendant's use of the plaintiff's mark must be relevant to the underlying work.
2. The use of the trademark must explicitly mislead customers about the source or content of the work.

While the use of the Jim Brown doppelgänger was held to be relevant, it was ruled that "a leap of logic" would be needed to equate the use of the anonymous, mis-numbered player to endorsement of the game. This seems to be a just ruling based on the Rogers test. In fact, given the aforementioned history of the video game business and that all players used in advertising and marketing of the game are represented in game by their actual names and numbers it does not take a "leap of logic" to conclude that EA is implicitly showing that Brown chose not to endorse the Madden game.

Canadian is slightly different to the law applied in Brown. In order for the tort to be established, the plaintiff must prove that:

1. The exploitation of the plaintiff's identity must be for a commercial purpose;
2. The exploitation must clearly capture the plaintiff.

This brings forward a much different issue than the Rogers test. The endorsement question is absent from this evaluation. Using the Canadian standard, the Brown case would turn on whether the replica player "clearly captures" the plaintiff. It seems that Brown would have actually succeeded, as the judge seemed prepared to concede that an avid football fan would be able to recognize the great Jim Brown as the running back on the historical teams of which he is a part.

In an interesting development, several former NCAA football players have suit against EA and the NCAA for using their likeness in EA's college football game. Because the claim was made based on the "illegal profit" made by the NCAA rather than Brown's "false endorsement" argument, the players' lawyer does not expect the First Amendment to apply. Their claim may be stronger than Brown's because EA uses their actual jersey numbers and EA even has a where the user can download the players' actual names. Some argue that the NCAA has long departed from amateur ideals and has turned into a professional sports organization that does not pay its athletes. These people claim that the NCAA unfairly exploit their unpaid student athletes by collecting vast amounts of money from ticket sales, TV rights and jersey sales. Thus, this is a huge case for the NCAA for if they lose, it may open the floodgates for likeness claims regarding jersey sales, promotional materials and more.

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