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.

Representing Osgoode are Ryan Heighton and Ryan Keller in the role of the Respondent, Robert Trenker and David Bowden in the role of the Appellant, and Danny Titolo to round out the team.

The Team is coached by , a member of IP Osgoode’s Advisory Board, and , all partners at Cassels Brock & Blackwell LLP. Founder & Director of IP Osgoode, , serves as the team’s Faculty Advisor.

The is intended to promote education in the intellectual property field and to provide students with the opportunity to interact with jurists of the Supreme, Ontario, and Federal Courts and experienced practitioners of intellectual property law. The moot is named in honour of the late , one of Canada’s leading intellectual property scholars and advocates.

The 2013 Fox Moot will be held on February 22-23, 2013.   The , Chief Justice of the United States Court of Appeals for the Federal Circuit, will be delivering the Fifth Annual Harold G. Fox Moot Lecture.

The post Introducing the 2012-2013 Fox Moot Team for Osgoode appeared first on IPOsgoode.