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Brown v. Electronic Arts, Inc., 724 F.3d 1235, 107 U.S.P.Q.2d 1688, 41 Media L. Rep. 2276, 13 Cal. Daily Op. Serv. 8150, 2013 Daily Journal D.A.R. 10,064

Facts

Jim Brown, a former professional football player, sued Electronic Arts, Inc. (EA) for allegedly violating the Lanham Act by using his likeness in the Madden NFL series of video games without his permission. Brown claimed that EA's use of his likeness caused consumer confusion regarding his endorsement of the games. The district court dismissed Brown's claim, applying the Rogers test, which assesses the artistic relevance of the use of a likeness in expressive works. Brown appealed the dismissal, arguing that the Rogers test should not apply to his case.

Issue

Did the district court err in applying the Rogers test to dismiss Brown's false endorsement claim under the Lanham Act?

Did the district court err in applying the Rogers test to dismiss Brown's false endorsement claim under the Lanham Act?

Rule

The Rogers test governs claims under the Lanham Act for false endorsement in expressive works. Under this test, the use of a trademark or likeness is not actionable unless it has no artistic relevance to the work or explicitly misleads consumers about the source or content of the work. The First Amendment provides protection for expressive works, and the balance between trademark rights and free expression is critical in these cases.

Under the Rogers test, provision of Lanham Act addressing false designations of origin will not be applied to expressive works protected by First Amendment unless the use of the trademark or other identifying material has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the use of trademark or other identifying material explicitly misleads as to the source or the content of the work.

Analysis

The court found that Brown's likeness had artistic relevance to the Madden NFL games, as EA aimed for extreme realism in its representations of NFL players. The court also determined that Brown failed to demonstrate that EA's use of his likeness explicitly misled consumers into believing he endorsed the games. The consumer survey presented by Brown did not address the nature of EA's behavior but rather the public's perception, which was insufficient to satisfy the second prong of the Rogers test.

Use of likeness of former professional football player was artistically relevant to football video games under Rogers test used to determine applicability of Lanham Act provision addressing false designations of origin to expressive works protected by First Amendment; video game manufacturer prided itself on extreme realism of games, and former player's likeness was important to recreating realistically one of teams in games.

Conclusion

The Court of Appeals affirmed the district court's dismissal of Brown's Lanham Act claim, concluding that the use of his likeness in the Madden NFL games was artistically relevant and did not mislead consumers.

The Court of Appeals affirmed the district court's dismissal of Brown's Lanham Act claim, concluding that the use of his likeness in the Madden NFL games was artistically relevant and did not mislead consumers.

Who won?

Electronic Arts, Inc. prevailed in this case as the court upheld the dismissal of Jim Brown's claims. The court reasoned that the use of Brown's likeness was artistically relevant to the video games, which are considered expressive works protected by the First Amendment. Furthermore, the court found that Brown did not provide sufficient evidence to show that EA's use of his likeness explicitly misled consumers regarding his endorsement of the games.

EA prevailed in this case as the court upheld the dismissal of Brown's claims, reasoning that the use of Brown's likeness was artistically relevant to the video games and did not mislead consumers.

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