Brown v. Electronic Arts, Inc., US 9th Cir. (7/31/13)
Civil Rights, Constitutional Law, Consumer Law, Entertainment & Sports Law, Intellectual Property, Trademark
Retired Hall of Fame football player, James “Jim” Brown, filed suit against EA, alleging that EA violated section 43(a) of the Lanham Act, 15 U.S.C. 1125(a), through the use of Brown’s likeness in EA’s “Madden NFL” series of football video games. The court rejected the “likelihood of confusion” test and the “alternative means” test, concluding that the only relevant legal framework for balancing the public’s right to be free from consumer confusion about Brown’s affiliation with “Madden NFL” and EA’s First Amendment rights in the context of Brown’s section 43(a) claim was the Rogers v. Grimaldi test. Applying the Rogers test, the court concluded that the use of Brown’s likeness was artistically relevant to the “Madden NFL” games and that there were no alleged facts to support the claim that EA explicitly mislead consumers as to Brown’s involvement with the games. In this case, the public interest in free expression outweighed the public interest in avoiding consumer confusion. Accordingly, the court affirmed the district court’s grant of EA’s motion to dismiss.
NCAA Licensing Litigation, US 9th Cir. (7/31/13)
Civil Rights, Class Action, Constitutional Law, Consumer Law, Entertainment & Sports Law, Intellectual Property, Trademark
Former starting quarterback for Arizona State University, Samuel Keller, filed a putative class action suit against EA, alleging that EA violated his right of publicity under California Civil Code 3344 and California common law by using Keller’s likeness as part of the “NCAA Football” video game series. EA moved to strike the complaint as a strategic lawsuit against public participation (SLAPP) under California’s anti-SLAPP statute, Cal. Civ. Proc. Code 425.16. The court concluded that EA could not prevail as a matter of law based on the transformative use defense where EA’s use did not qualify for First Amendment protection because it literally recreated Keller in the very setting in which he had achieved renown. The court also concluded that, although there was some overlap between the transformative use test and the Rogers v. Grimaldi test, the Rogers test should not be imported wholesale to the right-of-publicity claims. Finally, the court concluded that state law defenses for reporting of information did not protect EA’s use. Accordingly, the court affirmed the district court’s denial of the motion to strike the complaint.
Read More: Ninth Circuit Sides With Athletes in EA Video Games Case