On March 30, 2012 the California federal judge hearing the lawsuit initiated by a putative class of retired NFL players against Electronic Arts Inc. denied EA's motion to dismiss the suit and to strike the complaint. The Court ruled that the retired players' allegations that EA's unauthorized use of their likenesses in the "Madden NFL" video game was not trumped by First Amendment protection because the video game does not pass the transformative use test. Specifically, the court held that "[a]lthough EA appears to claim that its mere projection of plaintiffs' likenesses into avatar figures, capable of manipulation by gamers, is sufficient to confer constitutional protection, another way to see this supposed transformation is as a relatively literal, if skilled, translation of plaintiffs' conventional images into the medium of the video game".
This begs the question of what is transformative use? Generally, the courts have defined transformative use as a use that "adds new material that reflects critically on the original". Traditional categories of transformative use are for purposes of criticism, commentary, newsreporting and parody. Therefore, EA's argument relies on its ability to fall within one of these traditional categories or to convince to court to create a new category which is more reflective of the current world and the available technology.
EA argued in its motion to dismiss the case that it's "Madden NFL" video game should be granted the same First Amendment constitutional protection as any book or movie. This argument is founded in the recent Supreme Court decision in Brown v. EMA which clearly granted First Amendment protection to video games. However, the current Court took the position that the transformative use test focuses on the reproduction of the plaintiffs' likenesses, not merely the inclusion of expressive elements in game as a whole. The decision stated that "[i]f, as EA urges, any expressive elements within the larger work were somehow to 'transform' an otherwise conventional use of a celebrity's likeness, the right of publicity would effectively be eviscerated".
That said, this decision is merely one battle in an ongoing war. It is not dispositive on whether EA or the putative class of retired NFL players will ultimately be successful in the suit. Moreover, EA recently was successful in dismissing a similar lawsuit in another jurisdiction alleging the misuse of college players' likenesses in its "NCAA Football" titles. In this case the Court agreed with EA's argument that its First Amendment protections overruled the publicity rights of players. Therefore, with these conflicting decisions in the circuits it is uncertain in which way the current state of the law will head.
If you would like to read more about right of publicity and video games, please see our recent Client Alert.