By: Zachary Simon
A recent Ninth Circuit Court of Appeals decision brings to our attention broad implications of the use of a private citizen’s likeness in the popular entertainment sphere, still relevant as ever, in this case here in the video gaming environment. In Davis v. Electronic Arts, Inc., the court found itself called upon to rule on the balance of a professional football player’s right of publicity weighed against a video game designer’s own right to use the football player’s likeness in their video game series — the plaintiff here asserting claims to right of publicity under the California Civil Code and California common law conversion, trespass to chattels, and unjust enrichment. Countering this, defendant Electronic Arts (“EA”) put forth several affirmative defenses: “transformative use”, a “public interest” defense, and “incidental use.”
So as to comply with the state’s anti-SLAPP statute attempting to ward off malignantly postured claims, EA, in attempting to strike down the plaintiff’s claim, not only had the burden of establishing its affirmative defenses as a matter of law, but the burden of establishing the probability of prevailing in its motion to strike down the plaintiff’s claims. The court held that EA’s case ultimately did not demonstrate meet the requirement of the probability of prevailing on its incidental use defense — whereby its other defenses were effectively precluded by the court’s previous Keller decision relying its studied depiction of the college football environment. On the basis that Electronic Arts did not meet the burden of its affirmative defenses against Davis’ arguments, the court held that the district court had properly denied EA’s motion to strike the plaintiff’s suit against it, alternatively ruling in the plaintiff’s favor. Maybe most importantly, though, the court reiterated its holding in a previous case — Keller — that this type of unauthorized use of a football player’s likeness is not protected by the First Amendment.
EA’s chief defense relied on transformative use, a defense that this court had previously rejected in Keller. “The defense is a balancing test between the First Amendment and the right of publicity based on whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation.” Here, the court rejected EA’s claim, citing that EA in this case had executed what a video game creator in another case (Activision) had executed in using “literal re[-]creations” of the artist No Doubt performing “the same activity by which the band achieved and maintains its fame.” This court found No Doubt’s holding to be persuasive in Keller, that regarding not a music artist but a college football player — an analog, found to be a commercial exploitation of fame, against EA’s interests.
EA argued a second defense, a “public interest” claim and exception to the California Civil Code, section 3344(d), that provided an exception to where there is a connection with “any news, public affairs, or sports broadcast or account.” The court here held that the crux of Keller’s college football player facts were indistinguishable from those in these instant case, where the court held that EA’s reliance on a public interest claim could not be maintained where EA was not, in fact, publishing or reporting factual data.
The court assumes that, for the purposes of this opinion, and where the parties in this suit agree that the incidental use defense exists under California law, the court should recognize a number of factors and their respective relevance, including the defendant’s commercial profit; whether the use contributes something of significance; the relationship between the plaintiff’s likeness use and the purpose/subject of the defendant’s work; and the direction, prominence, or repetition of the name or likeness relative to the rest of the publication. The court found here, in detail that we will not explore in this note, that these factors supported the plaintiff’s position here, and in a substantial way. EA, the court found, had not established a probability of prevailing on this incidental use defense.
EA had not shown that its unauthorized use of former players’ likeness in Madden NFL qualifies for First Amendment protection under the transformative use defense, the public interest defense, or the incidental use defense. Accordingly, this court affirmed the district court’s denial of EA’s motion to strike.
To have artists and professional athletes appearing in video games is not new. It has been going on for decades. So, it appears surprising that a large corporation like Electronic Arts should find itself embroiled in an expensive lawsuit such as this, brought by these uncompensated plaintiffs, instead of doing due diligence in proactively seeking authorization of the players themselves or an agent on their behalf. On this topic, it is worth real investigation as to the language used in the clauses professional football league organization that represents its current and former players. Did these players sign away their rights to use of their likeness after all? This court opinion m
 Davis v. Elec. Arts Inc., No. 12-15737, D.C. No. 3:10-cv-03328-RS (9th. Cir. 2015).
 “Use of another’s name, voice, signature, photograph, or likeness for advertising or selling or soliciting purposes,” Cal. Civ. Code § 3344 (West 2014).
 “Anti-SLAPP motion,” Cal. Civ. Proc. Code § 426.16 (West 2014).
 Davis, 7-8 (citation omitted).
 Id. at 8, n.2 (“EA does not seek to distinguish this case from Keller. Instead, EA states it ‘raises these arguments here to preserve them for en banc review in this Circuit and/or United States Supreme Court review.’”).
 Id. at 8.
 Id. at 3 (citing Keller v. Elec. Arts Inc., 24 F.3d 1268, 1268 (9th Cir. 2013)).
 8, citing Keller at 1273 (internal quotation marks omitted).
 8, citing No Doubt v. Activision Publ’g, Inc., 122 Cal. Rptr. 3d 397, 411 (Ct. App. 2011).
 Cal. Civ. Code § 3344(d) (2014).
 Davis at 14 (citing Aligo v. Time-Life Books, Inc., No. C94-20707 JW, 1994 WL 715605, at *3 (N.D. Cal. Dec. 19, 1994)) (internal citations omitted).
 Davis at 16.