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In re NCAA Student-Athlete Name & Likeness Licensing Litigation, 724 F.3d 1268, 107 U.S.P.Q.2d 1629, 13 Cal. Daily Op. Serv. 8156, 2013 Daily Journal D.A.R. 10,071

Facts

Samuel Keller, a former college football player, filed a putative class-action lawsuit against Electronic Arts (EA), the developer of NCAA Football video games, alleging violations of his right of publicity. Keller claimed that EA used his likeness and that of other college athletes in their games without consent, which led to the lawsuit. EA moved to strike the complaint under California's anti-SLAPP statute, arguing that their use of the athletes' likenesses was protected by the First Amendment. The district court denied EA's motion, leading to an appeal.

Samuel Keller was the starting quarterback for Arizona State University in 2005 before he transferred to the University of Nebraska, where he played during the 2007 season. EA is the producer of the NCAA Football series of video games, which allow users to control avatars representing college football players as those avatars participate in simulated games.

Issue

Whether the use of college athletes' likenesses in video games by Electronic Arts is protected by the First Amendment, thereby barring Keller's right-of-publicity claims under California's anti-SLAPP statute.

Whether the use of college athletes' likenesses in video games by Electronic Arts is protected by the First Amendment, thereby barring Keller's right-of-publicity claims under California's anti-SLAPP statute.

Rule

Under California's anti-SLAPP statute, a defendant must show that the plaintiff's suit arises from an act in furtherance of the defendant's right to free speech. If the defendant meets this burden, the plaintiff must then demonstrate a reasonable probability of prevailing on the claim. The elements of a right-of-publicity claim include the defendant's use of the plaintiff's identity, appropriation of the plaintiff's likeness for commercial advantage, lack of consent, and resulting injury. The transformative use defense applies if the work adds significant creative elements beyond mere likeness.

Analysis

The court analyzed whether EA's use of Keller's likeness was transformative enough to warrant First Amendment protection. It concluded that EA's depiction of Keller in NCAA Football did not add significant creative elements, as it realistically portrayed him in the context of college football games. The court compared this case to No Doubt v. Activision, where the avatars were found to be exact depictions of the band members, thus not transformative. The court determined that Keller's likeness was used in a manner that did not qualify for First Amendment protection.

Under California's transformative use defense, video game developer's use of the likenesses of college athletes in its video games was not protected by the First Amendment, and therefore former college football player's right-of-publicity claims against developer were not barred by California's anti-SLAPP (strategic lawsuit against public participation) statute; video game realistically portrayed college football players in the context of college football games, and thus developer's use of player's likeness did not add significant creative elements so as to be transformed into something entitled to First Amendment protection.

Conclusion

The Court of Appeals affirmed the district court's decision, holding that EA's use of Keller's likeness was not protected by the First Amendment, and thus Keller's right-of-publicity claims were not barred by California's anti-SLAPP statute.

Who won?

Samuel Keller prevailed in this case as the court upheld his right-of-publicity claims against Electronic Arts. The court found that EA's use of Keller's likeness in their video games did not meet the transformative use standard necessary for First Amendment protection. This ruling emphasized the importance of protecting individuals' rights to control the commercial use of their identities, particularly in contexts where their likenesses are used without consent for profit.

Samuel Keller prevailed in this case as the court upheld his right-of-publicity claims against Electronic Arts. The court found that EA's use of Keller's likeness in their video games did not meet the transformative use standard necessary for First Amendment protection.

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