Ninth Circuit

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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.”
Continue Reading Davis: Electronic Arts Gets a New Set of Downs and Still Can’t Score

In March 2014, this column analyzed a decision by a Ninth Circuit panel in Garcia v. Google, Inc., in which the Court held that an actress, who believed she was appearing in a minor role in an Arabian adventure movie, could maintain a copyright infringement claim against the producers when they used the footage instead in an anti-Islamic film that resulted in her receiving death threats. As the prior column surmised, it appeared that “bad” (although entirely sympathetic) facts were making “bad” law.

This week, the Ninth Circuit ruled that it would rehear the matter en banc and ordered that its previous decision “not be cited as precedent by or to any court of the Ninth Circuit.” It remains to be seen whether the entire Ninth Circuit will take a different position this time (and hold that the lower court properly denied the injunctive relief) or take the opportunity to emphasize just how limited the scope of its prior ruling was intended to reach.

Below is the original column analyzing the Ninth Ciruit’s original ruling in this case.

A Bit Part, A Fatwa and Copyright Infringement

Most law students learn early in law school the old maxim: “Bad facts make bad law.”  A recent Ninth Circuit case, Garcia v. Google, Inc., seems certain to test this proposition with its incredibly sympathetic facts.
Continue Reading 9th Circuit Agrees to En Banc Rehearing of Garcia v. Google, Inc.