James Brown v. Electronic Arts, Inc.
724 F.3d 1235
9th Cir.2013Background
- Jim Brown, a retired and famous NFL player, sued Electronic Arts (EA) under § 43(a) of the Lanham Act, alleging EA used his likeness in Madden NFL video games without permission to create a false impression of endorsement.
- Madden NFL is an expressive video game series that recreates real NFL teams and players; EA licenses current players via the NFL/NFLPA but Brown (a former player) has no license agreement with EA.
- Brown alleged EA used his recognizable attributes in multiple Madden versions and sought relief under the Lanham Act; district court dismissed the Lanham Act claim under the Rogers test and declined supplemental jurisdiction over state-law claims.
- On appeal Brown asked the Ninth Circuit to reject or supplement the Rogers framework (arguing for likelihood-of-confusion or alternative-means tests) and challenged the district court’s factual determinations at the motion-to-dismiss stage.
- The Ninth Circuit treated Madden NFL as an expressive work (affirmed First Amendment protection for video games) and reviewed de novo whether Brown’s complaint plausibly met the Rogers test.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Rogers test to Madden NFL | Rogers should not control; alternative tests should apply | Rogers governs §43(a) claims for expressive works, including games | Rogers applies; Madden is an expressive work and Rogers is the proper framework |
| Artistic relevance (Rogers prong 1) | Brown alleges his likeness is not artistically relevant | EA argues realism and player likenesses are relevant to recreating NFL games | Likeness has at least minimal artistic relevance; prong 1 satisfied for EA |
| Explicitly misleading (Rogers prong 2) | Use of likeness, survey evidence, promotional materials, and EA statements create a triable issue that consumers are misled about endorsement | Mere use, survey results, or internal/limited statements do not show explicit misrepresentation to consumers | No plausible allegation that EA explicitly misled consumers about Brown’s endorsement; prong 2 not met |
| Suitability of dismissal at motion-to-dismiss | District court improperly weighed facts and made findings beyond complaint | Court may dismiss if plaintiff’s factual allegations do not plausibly support legal conclusions | Dismissal appropriate; plaintiff’s supporting facts were the wrong type to satisfy Rogers; district court did not err |
Key Cases Cited
- Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989) (establishing Rogers test for Lanham Act claims against expressive works)
- Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002) (Ninth Circuit adopting Rogers test)
- E.S.S. Entm't 2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095 (9th Cir. 2008) (applying Rogers to use of identifying material in the body of a video game)
- Brown v. Entertainment Merchants Ass'n, 564 U.S. 786 (2011) (Supreme Court recognizing First Amendment protection for video games)
- ETW Corp. v. Jireh Publishing, Inc., 332 F.3d 915 (6th Cir. 2003) (survey evidence insufficient to show explicit misleading under Rogers)