Right of Publicity

The Ninth Circuit Court of Appeals (sitting in San Francisco) has opened the door to college athletes’ challenges to the use of their images in popular sports video games. Former college football quarterback Sam Keller scored a victory in his claim against Electronic Arts, Inc., maker of the popular Madden NFL and NCAA Football video games, over the use of his jersey number and general appearance on one of its game avatars.  The appellate court held that the video game manufacturer was not protected by the First Amendment against the athlete’s right-of-publicity claim absent a transformation of the avatar beyond a mere celebrity likeness or imitation of Keller, which it did not do.  Allowing Keller’s suit to go forward, the court found that the video game did not qualify for protection as a “transformative use” because it “literally recreates Keller in the very setting in which he has achieved renown,” rather than creating some protectable new art of its own.  The court found that Keller was represented as “what he was: the starting quarterback for Arizona State” and Nebraska and that “the game’s setting is identical to where the public found [Keller] during his collegiate career: on the football field.”  As such, any expressive elements of the game were subordinated to the overall goal of portraying an actual celebrity likeness of Keller, thereby commercially exploiting his popularity and fame.

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