transparentJust over a month ago I wrote about the Davis v. Electronic Arts matter that was pending before the Ninth Circuit Court of Appeal.  Specifically, I opined that the matter was ripe for Supreme Court review in light of the circuit split that is developing with respect to the misappropriation of likeness in video games.  In my last blog, I explained that a number of legal scholars, and myself, believed that Electronic Arts had absolutely no chance of prevailing in Davis in light of an identical case that Electronic Arts lost at the trial level and on appeal (Keller v. Electronic Arts) wherein NCAA college football players brought a similar claim for the use of their likeness in the Electronic Arts video game franchise NCAA Football.  The matter was submitted to the Ninth Circuit on September 11, 2014, and the Ninth Circuit issued its opinion on January 6, 2015.

In the Davis v. Electronic Arts opinion (Case No. 12-15737), the Ninth Circuit rejected the legal razzle dazzle (pardon the football expression) raised by Electronic Arts and upheld the denial of Electronic Arts’ motion to strike the case as a strategic lawsuit against public participation (SLAPP).  Specifically, the Ninth Circuit rejected the argument that the use of the former players’ likeness was protected under the First Amendment as “incidental use.”  The Court disagreed with Electronic Arts’ characterization of the role of the former players’ likeness in the video game because it was central to Electronic Arts’ main commercial purpose: to create a realistic virtual simulation of football games involving current and former NFL teams.  Electronic Arts acknowledged that the likeness of the current NFL players carries substantial commercial value and failed to offer a meaningful distinction with respect to the former NFL players.  Instead, it argued that there are thousands of players in the video game and accordingly, any individual player’s likeness has only “de minimis commercial value.”  However, the Court refused to accept this highly technical argument and instead found “no basis for such a sweeping statement.”

The Court also rejected Electronic Arts’ transformative use defense, which is a defense used when the “work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation.”  The Court stated that the case was analogous to Keller in that the game “replicates players’ physical characteristics and allows users to manipulate them in the performance of the same activity for which they are known in real life—playing football for an NFL team.”  “Neither the individual players’ likeness nor the graphics and other background content are transformed more in Madden NFL than they were in NCAA Football. “  In fact, Electronic Arts did not even attempt to distinguish the two games.  Accordingly, the Court found that Electronic Arts had not shown that the transformative use defense applies to the claims.

Thus, the Ninth Circuit ruled exactly how the majority of legal scholars believed it would and followed Keller.  As a result, the circuit split regarding the misappropriation of likeness in video games has been reemphasized and it is quite possible that Electronic Arts will petition the Supreme Court for review to resolve the split.  It remains to be seen whether the Supreme Court will review the case in light of the sparse number of cases it reviews every year.  But be sure to check back periodically because if the Supreme Court grants review, we will be here with the play-by-play.